Appendix — Kaiser Eagle Mountain, Inc. v. National Parks & Conservation Ass'n

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Supreme Court, U.S.

FILED

—————

No. .10-____

Supreme Court of the United States

KAISER EAGLE MOUNTAIN, INC., AND

MINE RECLAMATION CORPORATION,

Petitioners,

Vv.

NATIONAL PARKS & CONSERVATION

ASSOCIATION, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

Leonard J. Feldman Thomas C. Goldstein

Jason T. Morgan Counsel of Record

STOEL RIVES LLP Jason P. Steed

600 University Street, AKIN GUMP STRAUSS

Suite 3600 HAUER & FELD LLP

Seattle, WA 98101 1333 New Hampshire

(206) 624-0900 Avenue, N.W.

Washington, DC 20036

(202) 887-4000

tgoldstein@akingump.com

oes a a 8 en eeeeceetenenenntnesipeencneencannioanileadannaneeeennnnn

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

10-548 OCT 22 2010

IN THE OFFICE OF THE CLERK

TABLE OF CONTENTS

APPENDIX A: Ninth Circuit Opinion ....................065. l

APPENDIX B: District Court Opinion...................... 98

APPENDIX C: IBLA Decision............ SER Sane 138

APPEINUIA D: BUM DeCIBION .......ccccscescsscscsssssvcesess 203

APPENDIX E: BLM Record of Decision................. 213

APPENDIX F: Ninth Circuit Order on

APPENDIX G: Statutes and Regulations............... 280

APPENDIX H: Declaration of Thomas Gey ...........297

APPitNDIX I: Memo to State Director ................... 301

APPENDIX J: Memo re Feasibility Report ............305

APPENDIX K: Environmental Impact

BCRCOMIONE CEEMCOPDUG) 5..00000:cccccccvossceonescscccesestssscesceses OOO

APPENDIX A

Ninth Circui: Opinion

United States Court of Appeals,

Ninth Circuit.

NATIONAL PARKS & CONSERVATION

ASSOCIATION, Plaintiff-Appellee,

BUREAU OF LAND MANAGEMENT; United States

Department of Interior, Defendants,

and

Kaiser Eagle Mountain, Inc.; Mine Reclamation

Corporation, Defendants-Appellants.

Donna Charpied; Laurence Charpied; Desert

Protection Society; Center for Community Action and

Environmental Justice, Plaintiffs-Appellees,

United States Department of Interior, Defendant,

Bureau of Land Management; National Park Service;

Bruce Babbitt, in his official capacity as Secretary of

the Interior; Tom Fry, in his official capacity as

Acting Director of the Bureau of Land Management;

Al Wright, in his official capacity as Acting California

State Director of the Bureau of Land Management;

Tim Salt, in his official capacity as Bureau of Land

Management California Desert District Manager;

Robert Stanton, in his official capacity as Director of

the National Park Service, Defendants,

and

Kaiser Eagle Mountain, Inc.; Mine Reclamation

Corporation, Defendants-Appellants.

National Parks & Conservation Association, Plaintiff-

Appellee,

Vv.

United States Department of Interior, Defendant-

Appellant,

Bureau of Land Management, Defendant-Appellant,

and

Kaiser Eagle Mountain, Inc.; Mine Reclamation

Yorporation, Defendants.

Donna Charpied; Laurence Charpied; Desert

Protection Society; Center for Community Action and

Environmental Justice, Plaintiffs-Appellants,

Vv.

United States Department of Interior; Kaiser Eagle

Mountain Inc.; Mine Reclamation Corporation;

Bureau of Land Management; National Park Service;

Bruce Babbitt, in his official capacity as Secretary of

the Interior; Tom Fry, in his official capacity as

Acting Director of the Bureau of Land Management;

Al Wright, in his official capacity as Acting California

State Director of the Bureau of Land Management;

Tim Salt, in his official capacity as Bureau of Land

Management California Desert District Manager;

Robert Stanton, in his official capacity as Director of

the National Park Service, Defendants-Appellees.

Nos. 05-56814, 05-56815, 05-56843, 05-56832, 05-

56908.

Argued and Submitted Dec. 6, 2007.

Filed Nov. 10, 2009.

Amended May 19, 2010.

Appeal from the United States District Court for the

Central District of California, Robert J. Timlin,

District Judge, Presiding. D.C. Nos. CV-00-00041-RT,

CV-99-00454-RT.

Before: HARRY PREGERSON, STEPHEN S. TROTT

and RICHARD A. PAEZ, Circuit Judges.

Opinion by Judge PREGERSON; Dissent by Judge

TROTT.

ORDER

The opinion filed on November 11, 2009 is

amended as follows:

Slip opinion at page 15123 [586 F.3d 735, 747-

48}, first paragraph, line 7, delete portion of

paragraph beginning “Furthermore” and concluding

at the ena of the paragraph with “ /d.“ Insert footnote

at line 7, at the conclusion of the revised paragraph.

The footnote shall read:

DOI’s current NEPA guidelines take the

exact oppos.ite approach to that of the Corps

regulations in Angoon. DOI’s’ NEPA

handbook explains that the “purpose and

need statement for an externally generated

action must describe the BLM purpose and

need, not an _ applicant’s or external

proponent’s purpose and need.” Department of

Interior, Bureau of Land Management,

National Environmental Policy Act Handbook

35, (citing 40 C.F.R. § 1502.13) (emphasis

added), available at http:// www. blm. gov/

pgdata/ etc/ medialib/ blm/ wo/ Information.

Resources. Management/ _ policy/ blm

handbook. Par. 24487. File. dat/h1790-1-

2008-l.pdf (citing 40 C.F.R. § 1502.13)

(emphasis added). “The applicant’s purpose

and need may provide useful background

information, but this description must not be

confused with the BLM purpose and need for

action.... It is the BLM purpose and need for

action that will dictate the range of

alternatives....” Id.

Slip opinion at page 15124 [586 F.3d at 748], line

4, delete the sentence beginning “That the BLM does

not....” Replace with “Kaiser may desire to find a

viable use for mine by-products located on its private

land holdings, but the BLM has no need to do so.”

Slip opinion at page 15125 [586 F.3d at 748],

delete the final sentence of footnote 9.

All pending amicus motions are GRANTED. All

petitions for panel rehearing and rehearing en banc

remain pending.

OPINION

PREGERSON, Circuit Judge:

Kaiser Eagle Mountain, Inc. (“Kaiser”) seeks to

build a landfill on a former Kaiser mining site near

Joshua Tree National Park (“Joshua Tree”). As part

of its landfill development plan, Kaiser sought to

exchange certain private lands for several parcels of

land surrounding the mine site and owned by the

Bureau of Land Management (“BLM”). Several

parties, including the National Parks Conservation

Association (“Conservation Association”) and Donna

and Laurence Charpied (“the Charpieds”), challenged

the land exchange. Nevertheless, the BLM approved

the land exchange, as did the Interior Board of Land

Appeals (“Appeals Board”).

The Conservation Association and the Charpieds

pursued challenges in district court on several

grounds, including violations of the federal Land and

Policy Management Act (“Management Act”) and

National Environmental Policy Act (“NEPA”). The

district court held for the Conservation Association

and Charpieds on the Management Act claims and

some, but not all, of the NEPA claims. We have

jurisdiction under 28 U.S.C. § 1291 and affirm in part

and reverse in part.

I. Background

Kaiser owned and operated an iron ore mine near

the Eagle Mountain range in Riverside County,

California from 1948 to 1983. The mine area covered

over 5,000 acres and included four large open pits.

The mine area also included a 429-acre “l'ownsite,”

which housed mine workers and support personnel,

and over which the United States owns a

reversionary interest. Though Kaiser currently leases

the Townsite for use as a correctional facility, the

majority of the mine site lies dormant. The disturbed

lands, which contain large quantities of mine

tailings, have not been reclaimed.

The BLM owns several parcels of land

surrounding the former mine site. In 1989, Kaiser

sought to acquire these parcels through a_ land

exchange. Under Kaiser’s proposal, Kaiser’ will

acquire 3,481 acres of public land, the United States’s

reversionary interest in the Townsite, and permanent

)

rigshts-of-way over the dormant Kagle Mountain

Railroad and Kagle Mountain Road. In exchange,

Kaiser offered 2,846 acres of private land near other

BILM lands and within an area designated as critical!

habitat for the desert tortoise.

Kaiser's ultimate goal is to develop the largest

landfill in the United States. The proposed Jandfill

project will cover 4,654 acres, including support and

“buffer” arcas. The landfill will accept solid wastes

from several Southern California communities. The

majority of the waste will be transported by train,

though there will also be some truck and “self-haul”

loads. The project is designed to operate for 117

years. At its peak, the proposed landfill will accept

20,000 tons of garbage per day, six days a week, for

up to sixteen hours per day. During the final phase of

the project, to commence in roughly seventy-eight

years, garbage will be deposited into the largest of

the four open mining pits, the Kast Pit. The

remaining pits will not be filled. The total capacity of

the proposed landfill is approximately 708 million

Lons.

Both Joshua Tree and the Kaiser mine site le

within a large desert wilderness area that is home to

several sensitive plant and animal species, includiny

the desert tortoise and Bighorn sheep. The proposed

landfill site sits within one and-a-half miles of Joshua

Tree. The landfill would be visible from remote areas

of Joshua Tree.

As part of its analysis of the proposed land

exchange, the BLM produced a Draft environmental

Impact Statement (“EIS”). The EIS described the

purpose and need of the project as follows:

The primary purpose of the Project is to

develop a new Class III nonhazardous

municipal solid waste landfill to meet the

projected long-term demand for

environmentally sound landfill capacity in

Southern California; provide a_ long-term

income source from the development of a

nonhazardous municipal solid waste landfill;

find an economically viable use for the

existing mining by-products at the Kaiser

Eagle Mountain Mine site, including use of

existing aggregate and overburden; and

provide long-term land use and development

goals and guidance for the Townsite.

With these purposes in mind, the BLM

considered six alternatives in detail: (1) No action; (2)

Reduced volume of waste; (3) Alternate road access;

(4) Rail access only; (5) Landfill on Kaiser land only;

and (6) Landfill development without Townsite

development.

The BLM also commissioned an appraisal report

on the proposed exchange lands from David J. Yerke,

Inc. (“the Yerke appraisal”). The Yerke appraisal

found that the “highest and best use” of the public

lands in question was “holding for speculative

investment.” The appraisal explicitly stated that _it

did “not take into consideration any aspects of the

proposed landfill project.” The Yerke appraisal

therefore valued the public parcels surrounding the

mine site at roughly $77 per acre and the Townsite at

roughly $106 per acre.'The appraisal valued the

Kaiser lands to be exchanged at approximately $104

per acre. The BLM subsequently required Kaiser to

pay $20,100, the difference between the value of the

exchanged public lands and Kaiser’s parcels.

In 1997, the BLM adopted a Final EIS,

incorporating the Draft EIS, and issued a Record of

Decision approving the land exchange as proposed by

Kaiser. The Conservation Association and Charpieds

filed administrative protests with the BLM. When

those protests were denied, the Conservation

Association and Charpieds separately appealed to the

Appeals Board. The Appeals Board affirmed the

BLM’s decision in a separate decision, incorporating

the Draft and Final EIS, in September 1999.

The Conservation Association and the Charpieds

(hereinafter, collectively “Conservation Association”)

filed separate complaints in the district court seeking

review under the Administrative Procedure Act and

alleging violations of the Management Act and

NEPA. The district court consolidated the

complaints. On cross-motions for summary judgment,

the district court ruled in the Conservation

Association’s favor, in part. Looking only to the

Record of Decision, the district court set aside the

land exchange because: (1) the BLM did not give “full

consideration” to whether the land exchange is in the

! The Los Angeles County Sanitation District has since

entered into a conditional agreement to purchase the landfill

property and permits for over $8,800 per acre.

public interest; (2) the Yerke appraisal failed to

consider a landfill as a “highest and best use”; (3) the

EIS’s “purpose and need” statement was too narrowly

drawn, with accordingly narrow potential

alternatives foreordaining landfill development; and

(4) the BLM failed to take a “hard look” at potential

impacts on Bighorn sheep and the effects of nitrogen

enrichment on the nutrient-poor desert environment.

This appeal followed.

II. Standard of Review

We review a grant or denial of summary

judgment de novo. Northwest Enuvtl. Advocates uv.

Natl Marine Fisheries Serv., 460 F.3d 1125, 1132

(9th Cir.2006). We may only overturn agency action

that is “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.” Great Basin

Mine Watch v. Hankins, 456 F.3d 955, 961-62 (9th

Cir.2006); 5 U.S.C. § 706(2)(A).

III. Scope of Review

As a preliminary matter, we must first identify

the agency action under our. review. The

Conservation Association argues, as the district court

held, that the Record of Decision constitutes final

agency action. We disagree.

Under the Administrative Procedure Act, only

“final agency action” is subject to judicial review. 5

U.S.C. § 704. The BLM is part of the Department of

the Interior (“DOI”). DOI regulations state that,

barring a petition for a stay, a decision will become

effective upon the expiration of the appeal period. 43

C.F.R. § 4.21(a)(2). If an Appeals Board fails to act

upon 4 petition for a stay or denies such a petition,

the decision becomes effective immediately. 43 C.F.R.

§ 4.21(a)(3). The Appeals Board’s decisions, in

contrast, constitute final agency action when made.

“The Board [of Land Appeals] decides finally for the

Department [of Interior] appeals to the head of the

Department from decisions rendered by

Departmental officials relating to ... [t]he use and

disposition of public lands....” 43 C.F.R. § 4.1(b)(3)().

“A decision of the Board shall constitute final agency

action and be effective upon the date of issuance,

unless the decision itself provides otherwise.” 43

C.F.R. § 4.403.2

In the case before us, the Record of Decision

never became effective, and cannot serve as the

agencys final action. The language of the

Administrative Procedure Act does not support the

Conservation Association’s arguments. “[A]gency

action otherwise final is final ... whether or not there

has been presented or determined an application for

. any rorm of reconsideration, or, unless the agency

otherwise requires by rule and provides that the

action meanwhile is inoperative, for an appeal to

superior agency authority.” 5 U.S.C. § 704. The

Conservation Association contends that no rule

renders the Record of Decision inoperative during the

2 The Conservation Association argues that 43 C.F.R. §

4.403 applies only to Appeals Board actions, and does nothing to

rob the Record of Decision of its finality. Taken to its logical

conclusion, this argument would allow for two independent, and

potentially conflicting, “final” agency actions. This cannot be.

pendency of the appeal, and therefore the Record of

Decision is a final action. This court has _ held,

however, that “exercise of an optional appeal to a

Department ALJ renders the initial Administrator's

decision nonfinal for purposes of judicial review

under the APA.” Acura of Bellevue v. Reich, 90 F.3d

1403, 1407 (9th Cir.1996). Furthermore, the

Conservation Association’s argument ignores the

“otherwise final” language of the Administrative

Procedure Act. DOI rules need not explicitly render

the Record of Decision inoperative because, in a case

such as that before us, the decision was never

effective in the first instance. 3

We note that in some cases, a Record of Decision

may constitute final agency action. For example,

where there is no administrative appeal, a Record of

Decision wil! become effective and final following the

expiration of the appeal period, in accordance with 43

C.F.R. § 4.21(a)(2). Similarly, where the Appeals

3 Contrary to Kaiser’s suggestion, our holding is not

compelled by 43 C.F.R. § 4.21(c). § 4.21(c) states:

No decision which at the time of its rendition is

subject to appeal to the Director or an Appeals Board

shall be considered final so as to be agency action

subject to judicial review under 5 U.S.C. 704, unless a

petition for a stay of decision has been timely filed and

the decision being appealed has been made effective ....

(Emphasis added). This subsection deals with exhaustion of

administrative remedies, not-finality of agency action. If taken,

as Kaiser suggests, to touch upon finality of agency action, §

4.2l(c)'s requirement that a petition for stay be timely filed

would render all actions not subject to a petition for stay non-

final, and thus unreviewable.

Board denies a petition for a stay, a Record of

Decision will become effective and final in accordance

with 43 C.F.R. § 4.21(a)(8). Indeed, this was the

situation in Desert Citizens Against Pollution v.

Bisson, 231 F.3d 1172 (9th Cir.2000). There, the

Appeals Board denied a petition for a stay. Id. at

1175. This court therefore reviewed the Record of

Decision as the final agency action. See, e.g., id. at

1182. In the case before us, in contrast, the Appeals

Board granted a stay. The Record of Decision

therefore never became effective and was not the

final agency action. We reverse the district court to

the extent that it limited its review to the Record of

Decision. The Appeals Board decision, which

incorporated the Environmental Impact Statement,

is the final agency action before us for review.

IV. Federal Land and Policy Management Act

Claims

Kaiser and the BLM appeal the district court's

determinations that the Yerke appraisal was

inadequate and that the BLM failed to give “full

consideration” to whether the land exchange well

serves the public interest.

A. Highest and Best Use

1. Exhaustion of Administrative Remedies

In district court, the Conservation Association

challenged the BLM’s appraisal of the exchange

lands on the ground that the BLM failed to consider a

landfill as the “highest and best use” of the public

parcels. Kaiser and the BLM argue, as they did

before the district court, that the Conservation

Association failed to exhaust this issue before the

Appeals Board, and that this court should not review

the highest and best use claim.

“As a general rule, we will not consider issues

not presented before an administrative proceeding at

the appropriate time.” Marathon Oil Co. v. United

States, 807 F.2d 759, 767-68 (9th Cir.1986). However,

we have repeatedly held that the exhaustion

requirement should be interpreted broadly. Plaintiffs

fulfill the requirement if their appeal “provided

sufficient notice to the [agency] to afford it the

opportunity to rectify the violations that the plaintiffs

alleged.” Native Ecosystems v. Dombeck, 304 F.3d

886, 899 (9th Cir.2002). Plaintiffs need not state their

claims in precise legal terms, and need only raise an

issue “with sufficient clarity to allow the decision

maker to understand and rule on the issue raised,

but there is no bright-line standard as to when this

requirement has been met.” Great Basin Mine Watch

v. Hankins, 456 F.3d at 968 (internal quotation

omitted).

In the case before us, we are satisfied that the

Appeals Board received sufficient notice to allow the

agency to respond to the highest and best use issue.

Although the Conservation Association did not use

the words “highest and best use,” its Statement of

Reasons for appeal to the Appeals Board stated:

THE BLM WILL NOT RECEIVE FAIR

MARKET VALUE FOR THE EXCHANGE.

Any disposal of federal lands must be

compensated at “fair market value of the use

of public lands and their resources.” 43

U.S.C.A. § 1701(a).... Kaiser will also pay

BLM a lump sum of $20,100, which is below

the fair market value. Kaiser anticipates huge

profits from a landfill operation on the

undervalued BLM land... .

(emphasis added). In their separate Statement of

Reasons, the Charpieds argued that “the public

should receive fair appraisal for its lands,” and “[njot

an appraisal that has been artificially reduced in

value through instructions to discount developments,

improvements, and recent zoning changes.”

These statements adequately raised the highest

and best use issue before the Appeals Board.* The

Yerke appraisal explicitly states that it does not

consider any aspect of the landfill project. The

Conservation Association’s Statement of Reasons

highlighted the BLM’s failure to appraise the land’s

fair market value as a landfill. The highest and best

use analysis is an integral part of the appraisal

process. 43 C.F.R. § 2201.3-2(a)(1) (“In estimating

4 The dissent finds language such as “appraisers failed to

consider that the Federal land to be exchanged is proposed to be

used as a landfill, and that, as a result, the land should be

valued ... in comparison to landfill sites” satisfactory to exhaust

the highest and best use issue. Dissent at 1096 (quoting Donna

Charpied, 137 IBLA 45, 47 (1996)). We see no meaningful

distinction between this language and that presented in the

case before us, which highlights that Kaiser will reap profits

“from a landfill operation,” will pay “below the fair market

value,” and that the appraisal unfairly ignored development and

zoning changes.

market value, the appraiser shall: (1) Determine the

highest and best use of the property to be

appraised[.]”). Under such a backdrop, the Appeals

Board had sufficient notice to address the highest

and best use issue.

2. Merits of the Highest and Best Use Claim

The statutory and regulatory requirements

governing appraisals are numerous. The

Management Act requires the BLM to appraise lands

before agreeing to a land exchange. 43 U.S.C. §

1716(d)(1). This appraisal must set forth an opinion

regarding the market value of the lands “supported

by the presentation and analysis of relevant market

information.” 43 C.F.R. § 2200.0-5(c). Market value

“means the most probable price ... that lands or

interests in lands should bring in a competitive and

open market ... where the buyer and seller each acts

prudently and knowledgeably.” 43 C.F.R. § 2200.0-

5(n). “In estimating market value, the appraiser

shall: (1) Determine the highest and best use of the

property to be appraised”; and “(2) Estimate the

value of the lands and interests as if in private

ownership and available for sale in the open market.”

43 C.F.R. § 2201.3-2(a)(1)-(2). “Highest and best use

means the most probable legal use of a property,

based on market evidence as of the date of valuation,

expressed in an appraiser’s supported opinion.” 43

C.F.R. § 2200.0-5(k).

The appraisal must also comply, to the extent

appropriate, with the separate requirements of the

Uniform Appraisal Standards for Federal Land

Acquisitions. 43 C.F.R. § 2201.3. Under the Uniform

Appraisal Standards definition, highest and best use

is “ ‘[t]he highest and most profitable use for which

the property is adaptable and needed or likely to be

needed in the reasonably near future.” “ The

Appraisal Institute, Uniform Appraisal Standards for

Federal Land Acquisitions 34 (quoting Olson ov.

United States, 292 U.S. 244, 255, 54 S.Ct. 704, 78

L.Ed. 1236 (1934)), availab’e at http:// www. usdo}.

gov/enrd/land-ack/yb2001.pdf. While Department of

Interior regulations define highest and best use as

the “most probable” use of land, the Uniform

Standards only require “reasonable probability” of a

given use. Uniform Standards at 34; Desert Citizens,

231 F.3d at 1181 n. 10. Under the Uniform

Standards, the highest and best use must also be: (1)

physically possible; (2) legally permissible; (3)

financially feasible; and (4) must result in the highest

value. Uniform Standards at 17.

In Desert Citizens, we examined a highest and

best use claim almost identical to that presented in

the instant case. Desert Citizens, 231 F.3d at 1175,

1180. In Desert Citizens, a mine operator proposed a

land exchange to the BLM in connection with the

development of the Mesquite Regional Landfill on

and near the Mesquite Mine. 7d. at 1175. An

appraisal of the public lands concluded that the

highest and best use was “open space” or “mine

support.” Jd. At the time of the appraisal, the mine

operator had already applied for county permits to

build the landfill. Jd. The district court upheld the

appraisal on the grounds that there was no market

demand for a landfill and that landfill development

was an expensive, risky venture. Jd. at 1180.

We reversed. After analyzing the statutory and

regulatory framework regarding highest and best

use, we held that “uses that are reasonably probable

must be analyzed as a necessary part of the highest

and best use determination. This analysis must have

due regard for the existing business or wants of the

community, or such needs as may be reasonably

expected to develop in the near future.” Jd. at 1181

(internal quotations and citations omitted). We

observed that because the lands in question “were

expected to be used for landfill purposes” and because

the “existence of other landfill proposals in the region

indicated a general market for landfill development,”

landfill use was reasonably probable and must “at the

very least “ have been considered in the highest and

best use analysis. Jd. (emphasis added).

We then proceeded to analyze the physical, legal,

and financial feasibility of the proposed Mesquite

Landfill, in accordance with the Uniform Appraisal

Standards. Jd. at 1184. In our discussion of financial

feasibility, we held that “a regional market and the

presence of competitors sponsoring similar projects

made reasonably probable, prior to the ... appraisal,

that use of the lands for landfill purposes was

financially feasible.” Jd. at 1185. Among the other

landfill proposals we relied upon as evidence of

market demand was the “Eagle Mountain Regional

Landfill proposed by Kaiser.” Jd.

The facts of Desert Citizens are virtually identical

to the facts before us in the instant case. Kaiser

applied for county permits before the Yerke appraisal

was drafted. The Yerke appraisal was clearly

cognizant of Kaiser’s proposal, yet explicitly stated

that it was not taking “into consideration any aspect

of the proposed landfill project.” Kaiser and the BLM

do not contest the physical or legal feasibility of

constructing a landfill at the Eagle Mountain site. As

for financial feasibility, we held in Desert Citizens

that the presence of competing proposals alone is

sufficient to establish market demand and financial

feasibility. Jd. If the Kaiser landfill proposal was

sufficient to establish a reasonable probability of the

Mesquite Landfill’s financial feasibility, the Mesquite

Landfill and other proposals must demonstrate

similar feasibility of the Kaiser project.

The BLM tries to distinguish Desert Citizens by

arguing that here, BLM market analyses did not

show that there were other landfill proposals in the

area, and therefore there is no evidence of market

demand. This argument distorts the facts of Desert

Citizens and misses the point entirely. Contrary to

the BLM’s assertions, in Desert Citizens we did not

look to the BLM’s own market analyses for proof of

market demand. To the contrary, the BLM’s position,

as articulated by the district court, was that market

demand did not exist. Jd. at 1180. In reversing this

determination, we looked not to any BLM market

analysis, but rather to the obvious and well-known

presence of competing landfill proposals. /d. at 1185.

Indeed, we found the appraiser’s willful ignorance of

facts of “general notoriety” “particularly troubling.”

Id. at 1182.

Kaiser and the BLM have failed to distinguish

the facts of this case from those of Desert Citizens.

® Kaiser and the BLM rely heavily on a 2002 report

compiled by the Herzog Group as part of the litigation of this

case. This report was not before either the BLM or the Appeals

Board. Accordingly, we do not consider it here. See, e.g., Ctr. for

Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930,

943 (9th Cir.2006) (“Parties may not use post-decision

information as a new rationalization either for sustaining or

attacking the Agency’s decision.” (internal quotation omitted)).

The dissent erroneously concludes that the ITIerzogz

“appraisal” cured any deficiency in the Yerke appraisal, and

that we should therefore consider the Herzog report under our

decision in Friends of the Clearwater v. Dombeck, 222 F.3d 552

(9th Cir.2000). Dissent at 1098-99. In Dombeck, we considered

supplemental materials presented after the onset of litigation

where a remand would be pointless because a court “could not

order the [agency] to conduct studies already completed to

answer questions the [agency] already answered on a basis that

could not be successfully challenged.” Id. at 560 (internal

quotation omitted). Kaiser argues that (1) the Herzog report did

consider highest and best use, as required by our decision in

Desert Citizens, (2) the BLM has rendered a final decision

accepting the Herzog analysis, and (3) the Conservation

Association failed to appeal that “decision.”

First, we note that Dombeck concerned a NEPA violation,

whereas here we examine a Management Act violation,

Dombeck also specifically distinguished suits to compel agency

action from challenges, such as that before us here, to a final

agency action. Regardless of these distinctions, Dombeck is

inapplicable because the record does not demonstrate that the

BLM has cured the defects of the Yerke appraisal on a basis

that is immune to challenge. Kaiser points to, and the dissent

apparently relies upon, a letter from a BLM district manager to

the State Director in which the district manager favorably

references the Herzog report in the course o1 reiterating that the

land exchange well serves the public interest. This letter hardly

establishes that the BILM has cured the Management Act

deficiencies of the Yerke appraisal “on a basis that could not be

As such, the highest and best use analysis should

have taken the reasonably probable use of public

lands for a landfill into consideration as part of the

highest and best use analysis. As we stated in Desert

Citizens:

[T]he use of the land as a landfill was not

only reasonable, it was the specific intent of

the exchange that it be used for that purpose

There is no principled reason why the BILM,

or any federal avency, should remain willfully

blind to the value of federal lands by acting

contrary to the most clementary principles of

real estate transactions

231 F.3d at 1184. We therefore affirm the district

court's grant of summary judgment on the

highest and best use claim under the

Management Act.

B. The Public Interest Determination

Under the Federal Land Polhey and Management

Act, the BLM must determine that “the public

interest will be well served” by a land exchange

before approving such an exchange. 438 U.S.C. §

1716(a); see also 438 C.FLR. § 2200.0-6(b). This

determination “shall vive full consideration to better

successfully challenged.” There is nothing in the record to

indicate that the BILM has rendered a final, appealable decision

on an appraisal that properly considers landfill use as a highest

and best use. Dombeck therefore docs not apply, and we do not

consider the 2002 Herzoy report

Federal land management and the needs of State and

local people, including needs for lands for the

economy, community expansion, recreation areas ...

and fish and wildlife ....” 43 U.S.C. § 1716(a). A

determination that an exchange well-serves the

public interest must be predicated on a finding that:

(1) The resource values and the _ public

objectives that the Federal lands or interests

to be conveyed may serve if retained in

Federal ownership are not more than the

resource values of the non-Federal lands or

interests and the public obiectives they could

serve if acquired,[*] and (2) The intended use

of the conveyed Federal lands will not, in the

determination of the authorized officer,

significantly conflict with established

management objectives on adjacent Federal

lands and Indian trust lands. Such finding

and the supporting rationale shall be made

part of the administrative record.

43 C.F.R. § 2200.0-6(b).

The Management Act does not define the term

“full consideration.” Our review is thus limited to the

question whether the BLM’s interpretation of the

term is based on .. permissible construction of the

statute. Chevron U.S.A., Inc. v. Natl Res. Def.

Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 81

6 In other words, the BLM must find that the resource

values of the public land being conveyed do not outweigh the

resource values of the private land being acquired.

L.Ed.2d 694 (1984). We review the entire record to

determine whether the agency’s decision was based

on a reasonable consideration of the relevant factors.

Hjelvik v. Babbitt, 198 F.3d 1072, 1074 (9th

Cir. 2 999).

The district court’s analysis was constrained by

its decision to review only the Record of Decision.

Having held that the Appeals Board’s decision, which

incorporates the EIS, is the final agency action under

review, we examine a broader set of materials than

did the district court. The Final EIS alone includes

over 1,600 pages of material not considered by the

district court, including detailed environmental

analyses. Though we do not necessarily agree with

the BLM’s public interest determination, the record

as a whole establishes that the BLM’s interpretation

of “full consideration,” as evinced by the analyses in

the EIS, is permissible under 43 U.S.C. § 1716(a).?

Accordingly, we reverse the district court’s

determination on this issue.

V. National Environmental Policy Act Claims

The National Environmental Policy Act requires

federal agencies to prepare an Environmental Impact

Statement discussing, among other things, the

environmental impact of a proposed action, any

7 In agreeing with this conclusion, the dissent quotes

several examples of these sufficient Management Act public

interest analyses, albeit in the context of a separate “purpose

and need” issue under the National Environmental Policy Act.

Dissent at 1079-84.

adverse environmental effects which cannot be

avoided, and alternatives to the proposed action. 42

U.S.C. § 4332(2)(C). In addition, implementing

regulations require that the ag ncy state the

underlying purpose and need for the proposed action.

40 C.F.R. § 1502.13. Kaiser and the BLM appeal the

district court’s holding that the EIS was deficient

with respect to purpose and need, reasonable

alternatives, impacts on Bighorn sheep, and

eutrophication.®

A. Purpose and Need and Reasonable Alternatives

Agencies enjoy “considerable discretion” to define

the purpose and need of a project. Friends of

Southeast’s Future v. Morrison, 153 F.3d 1059, 1056

(9th Cir.1998). However, “an agency cannot define its

objectives in unreasonably narrow terms.” City of

Carmel-By-The-Sea v. United States Dep't. of Transp.,

123 F.3d 1142, 1155 (9th Cir.1997). As the Friends

court stated, “An agency may not define the

objectives of its action in terms so unreasonably

narrow that only one alternative from among the

environmentally benign ones in the agency’s power

would accomplish the goals of the agency’s action,

and the EIS would become a foreordained formality.”

Friends, 153 F.3d at 1066 (quoting Citizens Against

Burlington, Inc. v. Busey, 938 F.2d 190, 196

§ Eutrophication, in.this context, refers to the introduction

of nutrients to the desert environment. The eutrophication

discussion in this case focuses on two potential pathways: (1)

landfill waste material; and (2) nitrogenbearing airborne

emissions.

(D.C.Cir.1991), cert. denied, 502 U.S. 994, 112 S.Ct.

616, 116 L.Ed.2d 638 (1991)) (correction in original).

We evaluate an agency’s statement of purpose under

a reasonableness standard. /d. at 1066-67.

In the case before us, the purpose and need

statement reads:

The primary purpose of the Project is to

develop a new Class III nonhazardous

municipal solid waste landfill to meet the

projected lor. g-term demand for

environmentally sound landfill capacity in

Southern California; provide a_ long-term

income source from the development of a

nonhazardous municipal solid waste landfill;

find an economically viable use for the

existing by-products at the Kaiser Eagle

Mountain Mine site, including use of existing

aggregate and overburden; and provide long-

term land use and development goals and

guidance for the Towns)ie.

The Conservation Association contends, and the

BLM does not dispute, that the majority of these

purposes and needs respond to Kaiser’s goals, not

those of the BLM. Other circuits have held that

agencies must acknowledge private goals. Colorado

Enutl. Coalition v. Dombeck, 185 F.3d 1162, 1175

(10th Cir.1999) (“Agencies ... are precluded from

completely ignoring a private applicant’s objectives.”);

Burlington, 938 F.2d at 196 (“[T]he agency should

take into account the needs and goals of the parties

involved in the application.”). Requiring agencies to

consider private objectives, however, is a far cry from

mandating that those private interests define the

scope of the proposed project. Instead, as the

Burlington court held:

[Ajgencies must look hard at the factors

relevant to the definition of purpose....

Perhaps more importantly [than the need to

take private interests into account], an

agency should always consider the views of

Con. ~ess, expressed, to the extent that the

agency can determine them, in the agency’s

statutory authorization to act, as well as in

other congressional directives.

Id. We agree.

Burlington does not conflict with our decision in

City of Angoon v. Hodel, 803 F.2d 1016 (9th

Cir.1986). In Angoon, a private party sought a federal

permit to build a log-transfer facility on its own

lands. Jd. at 1019. As part of an EIS, the Army Corps

of Engineers (“the Corps”) identified a purpose and

need to provide a “safe, cost effective means of

transferring timber harvested on [the privately

owned] land.” Jd. at 1021. The district court

eliminated the- private land specification, and

restated the purpose and need as “commercial timber

harvesting.” Jd. We reversed, rejecting the district

court’s “broad social interest” formulation in favor of

the Corps’s “more balanced” statement. Jd.

Angoon is distinguishable from the situation in

the case before us. In Angoon, the issue was whether

the Corps should issue a permit. Jd. at 1017-18. As

discussed above, agencies must look hard at the

factors relevant to definition of purpose. In Angoon,

those factors included a regulatory framework far

different from that guiding the BLM here. The

relevant Corps regulations in Angoon explic’**ly

stated that “every application has both an applicant's

purpose and need and a public purpose and need”

and specified that a Corps EIS must document

alternatives “which would satisfy the purpose and

need ... for which the applicant has submitted his

proposal.” Id. at 1021 (citing 33 C.F.R. pt. 230, App.

B(11)(b)(4)-(5) (1985) (emphasis added)). We

therefore held that the Corps’s purpose and need

statement, which emphasized _ private goals,

reasonably balanced the relevant factors. Id.

In contrast, the Department of Interior has

promulgated no reguiations emphasizing the primacy

of private interests. The DOI analogue to the Corps’s

regulation, 40 C.F.R. § 1502.13, merely requires that

an EIS “briefly specify the underlying purpose and

need to which the agency is responding in proposing

the alternatives including the proposed action.”

Furthermore, DOI’s current NEPA guidelines take

the exact opposite approach to that of the Corps

regulations in Angoon. DOI’s NEPA handbook

explains that the “purpose and need statement for an

externally generated action must describe the BLM

purpose and need, not an applicant’s or external

proponent’s purpose and need.” Department of

Interior, Bureau of Land Management, National

Environmental Policy Act Handbook 35, (citing 40

C.F.R. § 1502.13) (emphasis added), available at

http:// www. blm. gov/ pgdata/ etc/ medialib/ blm/ wo/

Information_ Resources_ Management/ policy/blm_

handbook. Par. 24487. File. dat/ h1790-1-2008-1.pdf

(citing 40 C.F.R. § 1502.13) (emphasis added). “The

applicant’s purpose and need may provide useful

background information, but this description must

not be confused with the BLM purpose and need for

action.... It is the BLM purpose and need for action

that will dictate the range of alternatives....” Jd.

The “LM’s definition of the project’s purpose will

necessarily affect the range of - alternatives

considered, because when “the purpose is_ to

accomplish one thing, it makes no sense to consider

the alternative ways by which another thing might be

achieved.” Angoon, 803 F.2d at 1021. Our task is to

determine whether the BLM’s purpose and need

statement properly states the BLM’s purpose and

need, against the background of a private need, in a

manner broad enough to allow consideration of a

reasonable range of alternatives. In the case before

us, the purpose and need statement sets out four

goals: (1) to meet long-term landfill demand; (2) to

provide a longterm income source from a landfill; (3)

to find a viable use for mine byproducts; and (4) to

develop long-term development plans for’ the

Townsite. The first, to meet long-term landfill

demand, 1s unquestionably a valid BLM purpose. The

remaining three goals, however, can hardly be

characterized as BLM needs. Kaiser and _ its

successors in interest, not the BLM, will be the

recipient of any long-term income from the landfill.

Kaiser may desire to find a viable use for mine by-

products located on its private land holdings, but the

BLM has no need to do so. Kaiser, not the BLM,

currently operates the Townsite, in which it stands to

receive a fee interest, and would be the beneficiary of

any long-term development plans.

The purpose and need statement, though it

includes one BLM goal, also sets out three private

objectives as defining characteristics of the proposed

project. Such a = narrowly drawn _— statement

necessarily and unreasonably constrains the possible

range of alternatives. The BLM considered only six

alternatives in detail: (1) No action; (2) Reduced

volume of waste; (3) Alternate road access; (4) Rail

access only; (5) Landfill on Kaiser land only; and (6)

Landfill development without Townsite development.

All of these options, save the No Action alternative,

would result in landfill development of some sort and

would require some portion of the land exchange to

occur.

The BLM proposed several alternatives that

would have been responsive to the need to meet long-

term landfill demand, such as a landfill on other

Kaiser property, waste diversion, offsite landfill

locations, landfill mining, alternative Townsite

locations, and alternative Townsite uses. The BLM

did not, however, consider these options in any detail

because each of these alternatives failed to meet the

narrowly drawn project objectives, which required

that Kaiser’s private needs be met.

Our holdings in Friends and Carmel-By-The-Sea

forbid the BLM to define its objectives’ in

unreasonably narrow terms. The BLM may not

circumvent this proscription by adopting private

interests to draft a narrow purpose and need

statement that excludes alternatives that fail to meet

specific private objectives, yet that was the result of

the process here. The BLM adopted Kaiser’s interests

as its own to craft a purpose and need statement so

narrowly drawn as to foreordain approval of the land

exchange.’ As a result of this unreasonably narrow

purpose and need statement, the BuuM necessarily

considered an unreasonably narrow range of

alternatives. We therefore affirm the district court’s

grant of summary judgment on both the “purpose and

need” and “reasonable range of alternatives” claims

under NEPA.

B. Bighorn Sheep

Under NEPA, an EIS must contain a “reasonably

thorough” discussion of an action’s environmental

consequences. State of California v. Block, 690 F.2d

753, 761 (9th Cir.1982). An EIS must “provide full

and fair. discussion of significant environmental

impacts.” 40 C.F.R. § 1502.1. Our review is limited to

whether an EIS took a “hard look” at the

environmental impacts of a proposed action. /d. We

must make a “pragmatic judgment whether the EIS’s

form, content and preparation foster both informed

decision-making and informed public participation.”

Block, 690 F.2d at 761.

9 The dissent conflates two unrelated issues: (1) adequacy of

the purpose and need statement under NEPA and (2) adequacy

of the public interest determination under the Management Act.

Dissent at 1082-83. Whether the BLM gave full consideration to

public interest factors, however, has no bearing on the

sufficiency of the EIS under NEPA. The dissent concludes that

so long as the BLM properly concluded that the project is in the

public interest, there is no NEPA violation-that is, that the ends

justify the means, We disagree.

Contrary to the district court’s conclusion, we

find that the EIS contains extensive analyses of

potential impacts on Bighorn sheep, including

migration patterns, habitat loss, and water

accessibility. The district court cited two particular

deficiencies with respect to Bighorn sheep. The

disti‘ct court found that the EIS did not address the

potential impact of tortoise-proof fencing on sheep

migration patterns and failed to specify what a

proposed “buffer zone” would entail.

The EIS does, however, contain the information

the district court believed was missing.'° The EIS

includes a 56-page report on Bighorn sheep. The

report is based on an extensive monitoring study,

utilizing sheep capture, radio telemetry, and genetic

testing methods. The EIS states that any installed

tortoise-proof fencing will be designed to allow for

sheep movement.!! The EIS explains that the buffer

zone constituting “644 acres of potential habitat

would remain as natural open space around the

periphery of the proposed landfill. This habitat would

provide a buffer zone between the landfill operation

and relocated sheep population.”!2 Though the EIS

does not “exactly specify’ what the buffer zone

—

10 The Final EIS incorporated the earlier Draft EIS.

1! Other evidence in the record indicates that fencing of this

type is eighteen inches high; high enough to restrict tortoise

movement but low enough to present no obstacle to Bighorn

sheep.

2 The Riverside County Specific Plan clarifies that the 644

acre area will provide a buffer between sheep and the footprint

of the landfill.

entails, it does contain a “reasonably complete”

discussion of this mitigation measure. See Okanogan

Highlands Alliance v. Williams, 236 F.3d 468, 473

(9th Cir.2000) (holding that an EIS must include a

“reasonably complete discussion of possible

mitigation measures.”). We are not authorized to

substitute our judgment for that of the agency. Block,

690 F.2d at 761. Having concluded that the BLM did

take a “hard look” at Bighorn sheep, our review is at

an end. Id. We reverse the district court on this issue.

C. Eutrophication

We apply the same analysis to the district court's

conclusion that the EIS insufficiently addressed the

potential for eutrophication, or introduction of

nutrients into the desert environment. Unlike its

discussion of Bighorn sheep, the EIS contains no

specific discussion of eutrophication. The BLM

argues that the relevant discussion is present in

other, scattered sections of the EIS. The EIS does, for

example, discuss “Biological Resources” and “Air

Quality.” The “Biological Resources” section discusses

mitigation measures, such as daily cover of the

working face of the landfill, that will reduce

“increased food availability.” The same “Biological

Resources” section references a_ separate “Air

Quality” section, which calculates potential levels of

nitrate production, to support the conclusion that

atmospheric nitrate deposition resulting from landfill

operations will be dwarfed by other sources in the

Los Angeles Basin. The EIS therefore concludes that

nitrate deposition from landfill sources will have no

effect on Joshua 'l'ree’s ecosystem.

In determining whether an EIS fosters informed

decision-making and public participation, we consider

not only its content, but also its form. Block, 690 F.2d

at 761. Here, the discussion of cutrophication is

neither full nor fair with respect to atmospheric

eutrophication, A reader seeking enlightenment on

the issue would have to cull through entirely

unrelated sections of the EIS and then put the pieces

together. To find the brief discussion of atmospheric

eutrophication, a reader must begin in the “Biological

Resources” section, which then refers to data from

the “Air Quality” section, and then with respect to

effects only on Joshua Tree, not the surrounding

area. Rather than address eutrophication up front,

the BLM instead attempts to cobble together a “hard

look” from various other analyses as varied as air

quality and disease vector control. This patchwork

cannot serve as a “reasonably thorough” discussion of

the eutrophication issue.!® We therefore affirm the

') The dissent’s contention that eutrophication is “not a

serious issue” is at odds with the analysis of both the National

Park Service and the IBLA. The National Park Service found

the eutrophication issue sufficiently serious as to merit an

official comment, as the dissent itself points out. Dissent at

1087-88. The IBLA aid not take the position that eutrophication

is unimportant, but instead concluded that the EIS adequately

took a “hard look” at the issue

The dissent contends that the EIS contains a “map” to the

eutrophication issue that 1s sufficient to meet the “hard look”

requirement.” Dissent at 1087-88. Whether the dissent or a

reviewing court, examining an EIS with the benefit of law clerks

and post-hoc rationalizations from counsel, is able to follow a

tortuous map to the buried treasure of a eutrophication

discussion 18s not the question. In examining an EIS, we must

make a “pragmatic judgment whether the EIS’s form, content

district courts decision on this NEPA claim

VI. Cross-Appeal

The Charpieds cross-appeal the district court

determination that they lacked standing to pursue

their claim against the National Park Service (“Park

Service’) under NEPA, the National Park Service

Organic Act, 16 U.S.C. § 1, and the California Desert

Protection Act, 16 U.S.C. § 410aaa, et seq. The

Charpieds also appeal the district court’s grant of

summary judgment to Kaiser and the BLM on NEPA

claims concerning the EIS’s sufficiency regarding

desert tortoises, visual, noise, and night lighting

impacts, groundwater, and air quality. We affirm the

district court on all issues on cross-appeal

Although the BLM was required to solicit the

Park Service's input on the EIS, 40 C.F.R. § 1503.1,

the BLM did not need the Park Service's approval to

complete the land exchange. The Park Service wa

involved in the Kaiser proposal only as a cooperating

agency. NEPA regulations distinguish lead agencies

from cooperating agencies. 40 C.F.R. § 1501.6

Cooperating agencies must, at the request of the lead

agency, help prepare environmental analyses,

including portions of the EIS. /d. In October 1996 the

Park Service recommended that the BLM reject the

Kaiser proposal and stated that the Draft EIS did not

and preparation foster both informed decision-making and

informed public participation.” Block, 690 F.2d at 761 (emphas:

rdded)

sufficiently address certain environmental impacts

In December 1996 the Park Service chanped its

position, and supported the EIS and Kaiser proposal

Standing requires three clements: (1) actual or

imminent injury in fact; (2) a causal connection

between the injury and the conduct complained of;

and (3) likehhood that a favorable decision will

redress the injury. Lujan v. Defenders of Wildlife, 504

U.S. 555, 561-62, 112 S.Ct. 21380, 119 L.ed.2d 351

(1992). The Charpieds argue that the Park Service's

reversal constituted a procedural violation under

NEPA, the California Desert Protection Act, and the

National Park Service Organic Act, and that relaxed

standards of redressability should apply. See Lujan,

504 U.S. at 572 n. 7, 112 S.Ct. 2130. The Charpicds,

however, have not identified any violation of a

procedural duty by the Park Service.'* The relaxed

standard therefore does not apply. A tavorablk

decision would not redress the injury complained of

because the Park Service is not the icod apvency

responsible for approving the Katser project. Even u

the Park Service were to rescind its approval of the

landfill project, the BLM, as the lead agency, would

be free to move forward. Accordingly, we affirm the

district court’s holding that the Charpieds lack

standing under NIPA, the National Park Service

Organic Act, and the California Desert Protection

Act

M4 'To the extent that the Park Service may have assumed oa

contractual duty to assist the BKILM, the Charpieds cannat

demonstrate that they are third party beneficirie

Lastly, we briefly address the Charpieds’ impact-

specific NEPA claims. As discussed above, our review

is limited to whether the EIS took a “hard look” at

the landfill’s potential environmental impact. Block,

690 F.2d at 761. In challenging the EIS’s discussion

of desert tortoises, visual, noise, and night lighting

impacts, groundwater, and air quality, the Charpieds

take issue with the EIS’s methodology and ultimate

conclusions. Without taking a position on those

conclusions, we find that the EIS’s discussion of these

issues is sufficient to foster informed decision-making

and public participation. We therefore affirm the

district court’s grant of summary judgment on these

NEPA claims, as well as its dismissal of the

Charpieds’ complaint against the Park Service.

VII. Conclusion

The judgment of the district court is AFFIRMED

in part and REVERSED in part. This case is

REMANDED for further proceedings consistent with

this opinion. Each side shall bear its own costs on

appeal.

TROTT. Senior Circuit Judge, dissenting:

What sane person would want to attempt to

acquire property for a landfill? Our well-meaning

environmental laws have unintentionally made such

an endeavor a fool’s errand. This case is yet another

example of how daunting-if not impossible-such an

adventure can be. Ulysses thought he encountered

fearsome obstacles as he headed home to Ithaca on

the Argo, but nothing that compares to the “due

process” of unchecked environmental law. Not the

Cyclops, not the Sirens, and not even Scylla and

Charybdis can measure up to the obstacles Kaiser

has faced in this endeavor. The record here exceeds

50,000 pages. At the beginning, Kaiser had a partner,

Browning-Ferris Industries (“BFI’), but BFI-a

company experienced in the field of solid waste

disposal-dropped out after investing $45 million in

the project with nothing to show for it in return. I

agree with my colleagues insofar as they dispense

with the cross-appea] and the public interest and

bighorn sheep issues, but I dissent with respect to the

rest. The final irony is that my colleagues send the

case back to the Bureau of Land Management

(“BLM”) to do something BLM has _=§ already

adequately done: consider the value of the land

involved as a commercial landfill.

BACKGROUND

Kaiser's proposed landfill formally began in 1989-

20 years ago-when it filed an application with BLM

for a land exchange to facilitate the construction of

what it called the Eagle Mountain Landfill. From

1948 to 1983, Kaiser had operated an tron ore mine

on 5,000 isolated acres of land it owned or controlled

in Riverside, California. In 1989, Kaiser sought to

acquire federal lands as part of an exchange that

would facilitate the Eagle Mountain project. The

landfill would have been the first to comply with new

Environmental Protection Agency guidelines. The

federal land Kaiser sought mostly encircled the spent

mines. Sixty percent of the targeted federal land is

classified as mountainous. Kaiser in turn offered

2,846 acres of mostly flat desert land to become part

of the California Desert Conservation Area located

about 1.5 miles from the border of Joshua Tree

Natural Park (“J'TNP”), and twenty miles from the

park’s nearest visitor center. The proposed landfill

would accept municipal, non-hazardous, solid waste

from seven Southern California counties, to be

delivered mostly by train.

In 1994, the State Superior Court in San Diego

County further described this project as follows:

“|Kaiser’s] mining operation resulted in the

excavation of three large open pits; each|[ |]

one to two miles long. The mining operation

ceased in 1983, and Kaiser has leased the

mine site to the prospective operator of the

landfill.

“(Kaiser/Mine Reclamation Corp.] plans to

utilize the open pits left from the mining

operation to create what all parties have

agreed is the largest landfill in the country.

The landfill footprint will encompass

approximately 2,262 acres within a larger

project area of 4,654 acres. The landfill will

have the capacity to accept up to 20,000 tons

per day of wastes for a minimum of 115 years.

“The landfill will receive most of the waste

from Los Angeles and other Southern

California counties. Ninety percent of the

garbage will be shipped by rail and the

balance by truck. All waste will be delivered

after processing at materials recovery

facilities (MRF’s) which accept delivery of

trash from homes and _ businesses’ and

compact the waste into containers for

transportation.

“The landfill accepts only nonhazardous

solid waste and inert wastes that have been

processed through MRFs. The Draft EIR

states a typical MRF would require about 10

to 30 acres and an enclosed structure of about

100,000 square feet. [ ] The garbage is

delivered to the MRF by truck and dumped

on the floor of the structure. Workers sort

through the waste and remove unacceptable

materials such as hazardous waste, sewage

sludge, radioactive, biological or infecticus

waste, and other materials needing special

handling. Recyclable materials may be

recovered. ‘The remaining wastes” are

compacted and packaged into containers that

hold up to 25 tons each and then loaded onto

rail cars, each of which holds 10 containers.

The containers are then transported to the

landfill. [| ] Approximately 19 percent of the

wastes will be transported by truck rather

than rail.”

Natl Parks & Conservation Ass'n v. County of

Riverside, 42 Cal.App.4th 1505, 50 Cal.Rptr.2d 339,

342 (1996).

I do an injustice to the record by attempting to

summarize the legal hurdles Kaiser has negotiated in

its thus-far vain attempt to accomplish its goals-at a

cost now 1n excess of $50,000,000-but here goes. !

First, the permits. After a lengthy public hearing

process, Riverside County issued all local land use

approvals, including a zoning change. Then,

California’s South Coast Air Quality Management

District approved permits for air emissions from the

project. Next the United States Fish and Wildlife

Service evaluated the potential impacts of the project

on threatened or endangered species and thrice

issued a “no jeopardy” opinion. The permits were

approved only after searching inquiries by the

issuing agencies. All the environmental laws were

addressed.

Then, the matter turned into a lawsuit in state

court. See Nat'l Parks & Conservation Ass'n v. County

of Riverside, 71 Cal.App.4th 1341, 84 Cal.Rptr.2d 563

(1999). Two Superior Court trials later, and after the

Draft EIS/EIR had been redone, the California Court

of Appeal ruled that Riverside County and BLM had

adequately addressed all environmental concerns

under California law. This was the second state

appeal in this dispute. In many respects, Cal*fornia’s

environmental laws are more demanding than their

1 | apologize to the reader for including extensive parts of

the record in my opinion, but the record-overlooked in large

measure in the majority’s opinion and the district court-is what

this case is all about. Unfortunately, the huge excerpt of record

will not be routinely circulated to the rest of the Ninth Circuit in

connection with an en banc call, so it is here that I must prove

the validity of my conclusions.

federal counterparts.

Moreover, Kaiser had actively engaged the

National Park Service (“NPS”) in an ongoing process

designed to protect Joshua Tree National Park. As

described by the Interior Board of Land Appeals

(““IBLA”), the agreement reached “gives NPS

precisely what they had requested as early as 1992-a

comprehensive, long-term monitoring and mitigation

program, which runs for the life of the project and is

specifically tailored to detect and to address any

unforeseen impacts on JTNP.” This is how the IBLA

described the National Park Service’s involvement:

When the decision was made [in 1995] to

prepare the new EIS/EIR, BLM invited the

NPS to participate as a “cooperating agency”

in the preparation of the new document-a role

that would recognize NPS’ special expertise

in evaluating impacts on the newly

designated JTNP.

At the scoping stage, the NPS submitted a

12-page letter outlhning issues that it wanted

to see addressed in the EIS/EIR. With the

assistance of the consultant preparing the

EIS/EIR, BLM reviewed these issues one by

one, held a series of meetings with the NPS

staff, and incorporated many of the NPS’s

recommendations into the Draft EIS/EIR.

Before the Draft EIS/EIR was issued, BLM

provided an “administrative draft” of the

document to NPS for review, and the NPS

provided more than 150 pages of comments.

Again, BLM responded point by point to

NPS’s comments in a 34-page response. BLM

accepted many of the NPS’s recommendations

and provided detailed explanations for those

it declined to accept. When the Draft EIS/EIR

itself was issued, the NPS submitted a third

round of comments, even more detailed than

the last. Again, BLM painstakingly reviewed

the NPS’s comments and addressed each of

them.

As the new EIS/EIR was being prepared,

the NPS again raised the issue of the project’s

potential unknown and_— unpredictable

impacts, as it had in 1992. To address this

concern, [Kaiser] MRC revived an idea that

the NPS itself had proposed during

preparation of the first EIS/EIR-namely,

entering into an agreement that would

establish a long-term mitigation and

monitoring program. Over the next 18

months, MRC and the NPS engaged in

extensive discussions to develop a detailed,

enforceable agreement. In the end, MRC and

NPS entered into a binding agreement that

gives NPS precisely what they had requested

as early as 1992-a comprehensive, long-term

monitoring and mitigation program, which

runs for the life of the project and is

specifically tailored to detect and address any

unforeseen impacts on JTNP. While the NPS

made it clear that it would prefer to avoid any

industrial-type activity at the mine site, the

agency agreed that if the landfill project were

to go forward, the agreement with MRC

provided the appropriate safeguards for

addressing NPS’s concerns’ about’ any

gradual, long-term impacts (which cannot be

accurately predicted).

(quotation omitted).

Furthermore, a ‘Technical Advisory’ Panel

composed of eminent scientists and engineers from

major California Universities was called in to look at

the project and concluded:

‘(T]he designers have done essentially all

that is humanly possible to make this a safe

landfill that will be protective of ... the

underlying and surrounding environment.

Given the favorable site conditions,

sophisticated waste containment systems,

and elaborate monitoring systems, _ the

proposed Eagle Mountain Landfill could well

become one of the world’s safest landfills and

a model for others to emulate.

(emphasis added).

County officials similarly noted that Kaiser had

“overdone its mitigation” and had “bent over

backwards in addressing all of the impacts which

have been brought up by previous commissions, by

the courts, by our staff, and by this particular

commission.”

The final Environmental Impact Statement

prepared for this project consists of (1) a 900-page

Draii EIS (“DEIS”), which details the potential

environmental impacts of the project, the range of

alternatives that were considered, and proposed

mitigation, and (2) a 1600-page Final EIS (“FEIS’),

produced following extensive and exhaustive public

comment on the DEIS. The required National

Environmental Policy Act (“NEPA”) documents were

issued jointly by the BLM and Riverside County in

1996, 13 years ago. In 1999, the IBLA issued a thirty-

two page opinion affirming BLM’s decisions.

But, we are just getting started. The same

plaintiff who lost in state court filed this federal

lawsuit, in 1999-10 years ago. The case took over five

years in district court simply to get to summary

judgment! It took the court three years to rule on the

completed motions, and, here we are at the end of

2009, another five years later, burdened by a

seriously flawed district court opinion, hitting the

reset button, and unnecessarily sending the parties

back to a Sisyphean hill which cannot be climbed in a

lifetime-ten years after the IBLA’s opinion. How

many of the people who started this project are still

employed by Kaiser, are still in public service, or for

that matter, are still alive? Yet, the process has

developed an eternal life of its own as _ full-

employment for all swept along with or by it.

Now, in an opinion that is not only not supported

by the record, but irreconcilable with it, the endless

process continues. No doubt we will see this case

back again, years from now, unless the proponents of

this project-including seven California counties-

weary of it and throw in the towel, thwarted and

defeated not by substance, but by interminable

process.

PURPOSE AND NEED/PUBLIC

INTEREST/CONSIDERATION OF

ALTERNATIVES

Purpose and Need

My colleagues’ opinion concluding that BLM’s

Statement of Purpose and Need for the project is

defective completely misunderstands the purpose of

this requirement in a setting where a private entity

approaches a government entity with a joint proposal

that will benefit both. Of course there is a private

purpose driving this project. But the project benefits

both parties, not just Kaiser. To isolate one without

factoring in the other is patently illogical. To

illustrate the folly of this fallacy, all one has to do is

examine the IBLA’s opinion outlining the habitat

benefits of this exchange to fish and wildlife and

threatened and endangered species. Here, however,

is how BLM’s goal reads in the Introduction of the

Draft EIS/EIR:

1.3.1 Project Purpose and Need

The primary purpose of the Project is to

develop a new Class III nonhazardous

municipal solid waste landfill to meet the

projected long-term demand for

environmentally sound landfill capacity in

Southern California; provide a long-term

income source from the development of a

nonhazardous municipal solid waste landfill;

find an economically viable use for the

existing mining by-products at the Kaiser

Eagle Mountain Mine site, including use of

existing aggregate and overburden; and

provide long-term land use and development

goals and guidance for the Townsite.

Several recent studies documenting the

need for additional landfill capacity in

Southern California indicate that additional

capacity is needed to meet the long-term

demands (i.e., 1995 to 2050) and possible

short-term needs (i.e.1995 to 2000) of the

Southern California region (California

Integrated Waste Management Board

[CIWMB],1992; CIWMB, 1994, Draft

Countywide Siting Elements-for the seven

counties viewed as potential sources of waste

for the proposed landfill-1995 and 1996).

Additional capacity is also required for

counties and municipalities in Southern

California to satisfy the legal requirements of

AB 939 to demonstrate adequate waste

disposal capacity. The solid waste capacity in

southern California changes often due to a

number of factors, including: (1) the closure of

small, ineffective landfills as new regulations

take effect; (2) the development of larger

regional sites; (3) the uncertainty of

permitting efforts of new and expanded

landfills; (4) litigation over land use issues of

landfills and (5) the privatization of publicly

owned landfills. These factors necessitate

that cities and counties undertake long-term

planning to ensure that adequate capacity is

available.

The discussion below of waste capacity in

the Southern California region is based on

projected short-, medium-, and long-term

needs. Future needs are based on several

continuing and changing trends: (1) increase

in population (California’s population is

expected to more than double from its current

30 million to more than 60 million by the year

2040 [California Department of Finance,

1993] ); (2) expanded waste diversion and

recycling, which is reducing the amount of

material being disposed of in landfills; and (3)

landfill closures and development proposals

that will affect future disposal capacity.

This section then takes 12 pages reviewing and

analyzing a “critical” landfill capacity shortfall in

Southern California, focusing on the counties of Los

Angeles, San Bernardino, Riverside, Orange, Santa

Barbara, Ventura, and San Diego the seven counties

within the proposed landfill’s service area. The

detailed discussion highlights a critical need for

“additional disposal capacity” in the service area.

During this’ particularized discussion, Kaiser’s

obvious pecuniary goals are nowhere in sight.

In the final ELS/EIR, we discover that the need

for landfill capacity had increased since the Draft.

The result-oriented notion that BLM has

“narrowly drawn” this statement of purpose and need

is utterly wrong. Of course BLM acknowledged

Kaiser's purpose-the law requires BLM to do so! For

private, non-federal proposals, “[a]gencies ... are

precluded from completely ignoring a_ private

applicant’s objectives.” Colo, Envtl. Coal. v. Dombeck,

185 F.3d 1162, 1175 (10th Cir.1999) (involving Vail

Associates expansion of its existing ski area into the

White River National Forest); see also Citizens

Against Burlington, Inc. v. Busey, 938 F.2d 190

(D.C.Cir.1991). Read with an open mind, this

statement suffers from no defects whatsoever

LB.

Public Interest

furthermore, my colleayues’ opinion inexplicably

excludes from the evidence it draws upon to support

its errant conclusion-that the Purpose and Need

Statement is wanting-an important requirement of

BLM's’ decision-making process: the — statutory

requirement that it conclude “that the public interest

will be well served by making that exchange.”

Federal Land Policy and Management Act of 1976

(“FLPMA”), Pub.L. No. 94-579, § 206(a), 90 Stat

2743, codified at 43 U.S.C. § 1716(a) (1994). The Code

of Federal Regulations is quite specific about what

must go into a “public interest” determination.

BLM must consider

the opportunity to achieve better

management of Federal lands, to meet the

needs of State and local residents and their

economies, and to secure important

objectives, including but not limited to:

Protection of fish and wildlife habitats,

cul(ural resources, watersheds, wilderness

and aesthetic values; enhancement © of

recreation opportunities and public access;

consolidation of lands and/or interests in

lands, such as mineral and timber interests,

for more logical and efficient management

and development; consolidation of — split

estates; expansion of communities;

accommodation of land use authorizations:

promotion of multiple-use values; and

fulfillment of public needs. In making this

determination, the authorized officer must

find that ... [t}he intended use of the conveyed

Kederal lands will not, in the determination

of the authorized officer, significantly conflict

with established management objectives on

adjacent Federal lands and Indian. trust

lands. Such finding and the supporting

rationale shall be made part of the

administrative record,

43 C.F.R. § 2200.0-6(b) (1988)

The record shows that BLM made such a careful

determination, as reflected in the IBLA’s opinion

rejecting the NPCA’s and the Charpieds’ allegations

to the contrary:

As noted above, contrary to NICA’s

assertions (Reply Brief at 3), BILM’s decision

documents and supporting Draft and Final

KIS/EIR contain extensive discussions of the

[public interest] factors set out in 43 C.FLR. §

2200.0-6(b). That record shows that the

acqutred private lands have substantial value

as habitat for threatened and endangered

species, so that acquiring them serves the

purpose of protection of fish and _ wildlife

habitats. The position of those lands relative

to current Federally-owned habitat means

that their acquisition will allow for more

logical and_ efficient management and

development. We also recognize that, apart

from the direct benefits of acquiring the

parcels of offered private lands, approval of

the exchange promotes the Project, which

undeniably meets the “needs of State and

local residents and their economies” by

allowing both a 100-year waste disposal

facility for a major metropolitan area, as well

as economic development of the Project area.

BLM may properly consider these factors as

part of its obligation to promote multiple-use

values, to fulfill public needs, and to expand

communities.

Under section 206(a) of FLPMA, the

Department must also find “that the values

and the objectives which Federal lands or

interests to be conveyed may serve if retained

in Federal ownership are not more than the

values of the non-Federal iands or interests

and the public objectives they could serve if

acquired.” There is no doubt that the Federal

lands and interests to be conveyed here (the

selected public lands) have been greatly

reduced in value due to their proximity to

Kaiser's mine and its spoil piles, tailing

ponds, etc. (Appraisal Report Vol. I at 9-13.)

Further, these lands are encumbered by

mining claims held by KEM, such that they

may be mined or even patented. /d. at 15.

Against this background, it is evident that

disposal of these lands in exchange for

wildlife habitat plainly entatls a net gain for

the public.

(emphasis added).

M colleagues’ opinion also ignores another

section of the DEIS’s articulation of the Project's

purpose and need involving the benefits to Riverside

County, where it will be located:

1.3.2.1 County of Riverside

The proposed County action is based on the

County’s authority for reviewing land use

applications (i.e., Specific Plans for the

proposed landfill and the Townsite) for the

proposed landfill and the ‘Townsite. In

making a decision on the pending land use

applications, the County will consider the

following County objectives.

- Provide the County and jurisdictions within

the County with environmentally sound,

long-term disposal capacity for waste

generated within the County.

- Provide the County with income from the

disposal fees for out-of-county waste disposed

of at the site. Provide for the acquisition and

preservation of valuable open space lands in

environmentally sensitive areas, for the

preservation and enhancement of biological,

scenic, and cultural resources in the County,

and research and education concerning

conservation of natural resources. This

activity will be funded through = the

contribution of one dollar per ton of waste

deposited at the landfill into a mitigation

monitoring trust fund administered by the

County.

- Reclaim lands disturbed by previous mining

activities.

> Assist jurisdictions within the County that

use the site for solid waste disposal to meet

the long-term landfill capacity as set forth by

state law (AB 9339).

- Provide a remote, regional municipal solid

waste landfill that allows transportation of

waste primarily by rail and uses existing

transportation infrastructure.

- Provide long-term disposal capacity to allow

the County to continue closing existing

unlined landfills within the County.

In evaluating this project in terms of the its

purpose and the public interest, BLM added

this worthy consideration:

Based on economic reports prepared by

experts, the Project is projected to generate

$210 to $280 million in revenue to the county

in the first twenty years of operation. That

additional revenue can be used to provide

needed federal services to the residents of

Riverside County. The Project will also

support or save, on an annual basis, an

average of 1,354 jobs in the county during the

first 20 years. The overall economic impact

during the next twenty years to the county is

projected to be in excess of $3 billion.

Also,

The Project will be the only landfill in

Riverside County which meets’ current

groundwater protection and other current

state and federal environmental protection

requirements, thus providing sufficient waste

disposal capacity to enable the county to close

existing landfills that do not meet current

state and federal regulations.

(emphasis added).

This is what BLM’s district manager had to say about

the value of this project to the United States in his

feasibility report dated February 8, 1993:

Public Benefits and Relationship to Land Use

Planning

The public lands are identified for disposal

and the private lands are recommended for

acquisition under the California Desert

Conservation Area (CDCA) Plan, as amended.

The offered private lands are within and

adjacent to the Chuckwalla Bench and Dos

Palmas/Salt Creek Areas’ of Critical

Environmental Concern and _ Orocopia

Mountains Wilderness Study Area designated

in the CDCA Plan. Respectively, these areas

contain important habitat for the desert

tortoise, a Federally listed threatened species,

and riparian habitat supporting| ] the desert

pupfish, a Federally listed endangered

species. The land exchange would secure

important habitat for these species.

He augmented his favorable opinion in 1997 in

his Notice of Decision asking for public comment:

The non-Federal lands to be acquired by the

United States are located within and adjacent

to the Chuckwalla Bench and _ Dos

Palmas/Salt Creek Areas of Critical

Environmental concern. Respectively, these

areas contain important habitat for the

Desert Tortoise, a federally listed threatened

species, and habitat supporting two federally

listed endangered species, the Yuma Clapper

Rail and Desert Pupfish.

The Federal lands being conveyed consist of

highly disturbed lands in and around the

Eagle Mountain Iron Ore Mine located north

of Desert Center, California. ‘The Federal

lands will be used to facilitate the proposed

development of the Eagle Mountain Landfill

and Recycling Center Project, a Class [II non-

hazardous municipal solid waste landfill in

Riverside County. Disposal of the Federal

lands is consistent with the California Desert

Conservation Area Plan of 1980, as amended.

The public interest will be well served by

making the exchange.

In summary, my colleagues’ opinion suffers from

a fundamental flaw in its quarantined analysis of two

interrelated issues, the purpose and need for the

project, on one hand, and whether the exchange of

federal land serves the public interest on the other.

They grudgingly conclude that the BLM adequately

determined that the public interest is served by the

landfill, but, in the same breath, they claim to have

found a defect in BLM’s articulation of the project’s

purpose and need. How can a project that satisfies

the rigorous public interest demands of the exchange

law fail because its purpose and need over represents

primarily private goals and objectives? It is a mistake

to approach these two statutory requirements as

separate and independent from each other, especially

in a case such as this where the exchange is between

a private entity and a public interest. Of course

Kaiser has its own goals it hopes to accomplish from

this project, and of course it hopes to make a profit,

but it seems blindingly apparent that its goals

dovetail with the public’s need for a landfill, and

especially a landfill such as this that not only meets

and far exceeds our laudable’ environmental

expectations, but greatly enhances, by the acquisition

of 2,846 acres, contiguous federal land that protects

endangered species living on tt.

The Record of Decision says this about value to BLM:

4.2 Acquisition of Important Wildlife

Habitat: The proposed land exchange

presents an opportunity for BLM to achieve

better management of Federal lands by

allowing BLM to’ consolidate Federal

ownership of land that contains habitat for

listed species. In the land exchange, BLM

would acquire approximately 2,846 acres of

Kaiser lands, which contain’ important

habitat for the desert tortoise, a Federally

listed threatened species, and for the desert

pupfish, a Federally listed endangered

species, and for other’ environmentally

sensitive species. In addition to the lands

acquired as part of the land exchange, BLM

also would acquire approximately 400 acres of

desert tortoise habitat for mitigation of

impacts caused by the Project. This land

would be purchased by the applicant, and

then would be conveyed in fee to BLM as

mitigation for the loss of 160 acres of tortoise

habitat, which would be used for widening

and extending the Eagle Mountain Road as

part of the Proposed Action. Given the lands

to be acquired, including the mitigation land,

the land exchange would further BLM’s

objective of securing additional protection of

important habitat for sensitive species.

The Kaiser lands to be acquired by BLM in

the land exchange are located in four

geographic areas (see Exhibit “B”). The

location oof these lands, and_ the

environmental benefits associated with their

acquisition, are summarized a follows:

Group A: Salt Creek (Dos Palmas) ACEC

T.8S., R. 11 E.

Section 13: NE1/4

Section 21: E1/2E1/2SE1/4

Section 23: Described in metes and bounds.

These three parcels are located in the

vicinity of the Salt Creek (Dos Palmas) Area

of Critical Environmental Concern (ACEC).

The entire ACEC area of about 14,000 acres

includes both Federal and private lands and

is popularly referred to as Salt Creek (Dos

Palmas) ACEC, even though the ACEC only

includes the Federal lands. One of the

management objectives in the Salt Creek

(Dos Palmas) area is to acquire private lands

for the management of various palm oases

and seeps that provide habitat for the desert

pupfish and Yuma _ clapper rail, both

Federally listed endangered species. Over

3,200 acres have been acquired or are in the

process of being acquired by BLM. All three of

Kaiser’s _ parcels will contribute to

consolidating Federal lands, thus enhancing

management of the area. The parcel in

Section 23 contains desert pupfish habitat

along a tributary to Salt Creek.

Group B: Orocopia Mountains Wilderness

T.758., R. 12 E.

Section 35: Described by metes and bounds

Section 36: N1/2SW 1/4, SE1/4NW1/4,

S1/2NE1/4

T.7S., R. 13 E.

Section 31: Described by metes and bounds

These three parcels are located on the

southern boundary of the Orocopia

Mountains Wilderness Area. They are not

contiguous to the Wilderness Area. However,

consolidation of Federal lands in this area

would simplify land management and

enhance recreational opportunities. These

parcels are in an area designated by the

USFWS as critical habitat for the desert

tortoise under the Endangered Species Act. A

population of approximately 50 Nelson's

bighorn sheep occurs in this area and another

population of approximately 100-200 sheep

occurs in the Chocolate Mountains to the

south. These populations migrate between

the mountain ranges in the vicinity of the

parcels. Nelson’s bighorn sheep is a State of

California fully protected species and a BLM

sensitive species. Populations of Orocopia

Sage, a Federal species of concern, occur on

all three parcels. Acquisition of Kaiser’s

parcels would block up a large area of BLM

managed lands and enhance management of

lands used by migrating bighorn sheep.

In summary, my colleagues’ opinion’s claim that

BLM “foreordained” the approval of this exchange is

indefensible in terms of the record.

Consideration of Alternatives

These egregious errors are then improperly used

to force the declamatory conclusion that BLM’s

consideration of a “range of alternatives” was

“similarly unreasonable” and defective. This is easily

demonstrated to be wrong simply by reading the

record, which contains a pithy section discussing a

range of alternatives. Identified and discussed at

length are the following:

Alternatives Considered in Detail

1. No action

-Status quo

2. Reduced volume of onsite disposal

3. Alternate road access

-No new road construction

4. Rail access only

-Ehmination of hauling trucks

5. Landfill ori Kaiser land only

-No land exchange/small landfill footprint

6. Landfill development/no Townsite

development

-No resuscitation of the existing Townsite

Alternatives Considered But Eliminated

1. Landfill on other Kaiser property

. Waste Diversion

3. Proposed offsite/and fill diversions

4. Landfill mining

. Alternative Townsite locations

6. Alternative Townsite land use and density

Accordingly, BLM determined that the preferred

alternative is the Proposed Landfill Action. Riverside

County, required to conduct a different analysis,

agreed with this assessment:

Pursuant to CEQA, the County has

determined that the environmentally

superior alternative is the No _ Action

Alternative. The No Action Alternative would

leave the Project site in its present condition

and avoid the potential impacts of the

proposed landfill. The No Action Alternative

could, however, lead to its own adverse

impacts, such as the adverse visual impact of

the disturbed mining site and the remaining

tailing piles. Also, the potential impacts

associated with continued reliance on new or

existing landfills in Southern California could

be substantial, such as air quality impacts or

groundwater impacts at existing unlined

landfills. In addition, the other objectives of

the Project as listed in Sections 1.3.2.1 and

1.3.2.2 would not be realized if the No Action

Alternative were chosen. However, with

respect to impacts in the vicinity of the

Project site, the No Action Alternative is, on

balance, the environmentally = superior

alternative.

Where the No Project Alternative is

determined to be the’ environmentally

superior alternative, CEQA requires that an

environmentally superior alternative’ be

selected from the remaining alternatives.

There are no clearly environmentally

superior alternatives compared to the No

Action Alternative. However, as required by

Section 15126(d)(4) of the CEQA Guidelines,

the County has determined that, on balance

the Proposed Action Alternative is the

environmentally superior alternative among

the remaining alternatives. Many of the

potential impacts of the proposed Project are

the same or similar to the potential impacts

of the remaining alternatives. Some

alternatives would, however, have a greater

level of impacts than the proposed Project.

For example, the Landfill on Kaiser Land

Only Alternative without the land exchange

would diminish the protection of habitat and

wildlife because there would be _ no

consolidation of sensitive habitat lands

resulting from the land exchange.

That alternative and the Reduced Volume

Alternative would also decrease the level of

contribution to the Environmental Mitigation

Trust Fund, thus diminishing the funding

available for acquisition of habitat lands. The

Reduced Volume Alternative and the Rail

Access Only Alternative could also extend the

duration of certain impacts by extending the

life of the landfill. These other alternatives,

however, could reduce the level of a few

impacts in comparison to the _ proposed

Project. Only the No Action Alternative would

result in impacts considered not to be

significant.

y, BLM approved this exchange

because the project not only provides a benefit to

Southern California and to Riverside County, but

also because it serves important federal law

In summary

management objectives.

[il

EUTROPHICATION

What is it? Essentially, eutrophication is a term

that refers to an increase in chemical nutrients in an

ecosystem, either on land or in water. The word itself

is derived from Greek, “eu,” meaning “good,” and

“trophic,” meaning “food” or nutrients. Nitrogen,

which is at the root of the controversy in this case, 1s

an essential element in the lives of both animals and

plants and, in fact, occurs naturally in great quantity

in the atmosphere. Nitrogen is also a key element of

the fertilizer used positively to increase the food

productivity of land throughout the world.

The environmental “problem,” of course, occurs

with anthropogenic eutrophication which causes

alterations in plant or animal life-or both-in a

manner regarded as not positive. I note that most of

our national eutrophication concerns involve negative

changes in_ bodies of water caused by the

anthropogenic introduction of excessive amounts of

phosphorus. | have yet to find a situation where the

introduction of nitrates into a desert ecosystem has

caused material environmental harm. ‘he Charpieds

fear that this is such a case, a concern refuted by the

facts.

The parties cannot agree on the scope of alleged

eutrophication concerns in this case as it relates to

the consequences of nitrate deposition. As

summarized by the district court,

Plaintiffs contend that BLM neglected to

address’ significant impacts on _ the

environment due to eutrophication including

an increased presence of scavenger raven and

coyote populations, impacts on bird, mice, and

other small animal feeding habits due to the

nutrients from the landfill and windblown

trash, and irreparable impacts on the desert

food chain.

Relying on the closed and covered nature of the

landfill, Kaiser asserts that the only source of

nitrates related to the landfill are an insignificant

consequence of “atmospheric nitrate deposition from

the emission and transport of anthropogenically

generated nitrogen compounds.”

In the main, the plaintiffs complain that the

defendants did not take a “hard look” at this

problem, as they were required to do by NEPA. I

disagree.

In their Statement of Reasons supporting their

appeal to the IBLA, the Charpieds describe their

eutrophication problems as follows:

A major concern to commenters,

particularly NPS, was the impact of the dump

adding a large volume of nutrients into an

environment which has been nutrient scarce

for millions of years (see FEIS/R under

Agencies page 69). Despite repeated request

[sic] from NPS to address the eutrophication

process, BLM and Kaiser/MRC refused to

conduct such an analysis.

The EIS/R admitted “an increase in road

kills of local wildlife species would likely

result from the project’s 12 to 16 hour per day

truck traffic along access roads” (see DEIS/R

4.7-6)[.] It is also acknowledged that common

raven and other scavenger populations “could

increase in response to increased food in the

form of road-killed animals[.]” /d. Yet, the

EIS/R never grappled with the important

concept of eutrophication from this increase,

or other possible causes of cutrophication,

such as adding 20,000 tons of food (garbage)

to a nutrient scarce area. The EIS/R noted

the Council on Environmental Quality’s

(“CEQ”) description of biodiversity: “the

concept that all components of ecological

systems, both living and nonliving, are

interconnected in a hierarchical continuum,

and that changes in the diversity at any level

in that hierarchy can have effects at other

levels ...” (see DEIS/R 3[.]7-28). The EIS/R

also acknowledged that growing scientific

evidence supported a deep concern for

biodiversity caused by human activity that

adversely affects the components’ of

ecosystems and their interconnections; this

results not only in species extinction, but in

disruptions of the functions of ecosystems on

which all life depends; and the introduction of

exotic species can eliminate native species

through predation, competition, or disease

transmission, and alter’ interconnections

between species, changing ecosystem

functions (see DEIS/R 3.7-30). Further the

EIS/R recognized that “because water and

primary productivity are limited, desert

ecosystems recover very slowly from

disturbances that disrupt the

interconnections between living and

nonliving components of the system” (see

DEIS/R_ 3.7-31). Despite these important

factors, the EIS/R_ failed to analyze

eutrophication and its impact to JTNP’s

ecosystem|].]

The Agreement between NPS_ and

Kaiser/MRC does not remedy the inadequacy

of the EIS/R’s assessments of impacts and

mitigation measures. (See FEIS/R Appendix

T for Agreement|.] ) BLM mischaracterizes a

side agreement (“Agreement”) entered into

between the polluters and NPS, and then cite

[sic] said Agreement 30 times in response to

NPS’ concerns in defense of the adequacy of

the EIS/R’s analysis[.]}

This concern about an increase in raven and

“other scavenger populations” (unnamed) due _ to

“roadkill” strikes me from the record as greatly

exaggerated, and it suggests simply going down the

list of usual environmental concerns and then

manufacturing a groundless make-weight argument

to try to inject eutrophication into this case.

Contrary to (1) the Charpieds’ overblown

concerns and claims, (2) the district court’s mistaken

view of this record, and (3) my colleagues’ opinion,

the BLM did_= examine eutrophication and

determined-correctly so from the record-that it was

not a serious issue. Here is what the IBLA had to say

about the issue as raised by the Charpieds:

“Eutrophication” is a process, associated

with aging aquatic ecosystems such as lakes,

whereby concentrations of phosphorus,

nitrogen, and other plant nutrients increase,

altering the ecosystem by algae blooms or

microscopic organisms. “Cultural

eutrophication” occurs when the aging

process is sped up by the activities of

humankind by allowing excess nutrients in

such forms as sewage, detergents, and

fertilizers to enter’ the ecosystem.

Encyclopedia Brittanica, Micropaedia Vol. III

at 1007 (1979).

In the present context, NPS used the term

“eutrophication” to refer to the addition of

nutrients (in garbage and trash) to the desert

ecosystem, raising the possibility that the

ecosystem would be upset by the proliferation

of animal life such as insects and rats. NPS

requested that this possibility be examined in

the EIS/EIR process. NPCA IT at 29-30.

The Charpieds assert that BLM failed to

adequately assess “impact of the dump

adding a large volume of nutrients into an

environment which has been nutrient scare

for thousands of years.” (Charpieds’ SOR at

39-30.)

n.16

We must... review each issue [including

eutrophication] to determine whether the

effects cited by the Charpieds are “relevant

matters of environmental concern” or

constitute “probable environmental

consequences,” such that BLM was required

to present a “reasonably thorough discussion”

of them as part of its requisite “hard look.”

The record shows that the EIS/EIR satisfies

BLM’s obligation to take a “hard look” at

such impacts.

The EIS/EIR addressed “eutrophication”

and roadkill. (Draft EIS/EIR at Sec. 4.7.4,

ROD at 15; Final EIS/EIR at 7-22 to 7-24;

Response to Comments 1-123 and 1-153.) The

Charpieds fail to specify how this assessment

is deficient and thus fail to meet their burden

of showing error in BLM’s review. Effects of

night lighting were addressed. (Final

EIS/EIR Sec. 6.6.)

To the extent that appellants fault BLM for

not considering the possibility that mining of

the site will resume at some point in the

future, compounding environmental

questions, this issue goes beyond presently

foreseeable effects. BLM’s approval of the

Project is subject to ongoing monitoring to

determine whether’ additional adverse

impacts to the ecosystem eventuate.

NEPA is primarily a procedural statute

designed “to insure a fully informed and well-

considered decision.” Vermont Yankee

Nuclear Power Corp. v. Natural Resources

Defense Council, Inc., 435 U.S. 519, 558, 98

S.Ct. 1197, 55 L.Ed.2d 460 (1978). That is,

although NEPA requires an agency to

prepare an EIS where significant impacts are

identified (as BLM did here), nothing in

NEPA restrains an agency from proceeding

with an action that will have significant

impacts where it decides that other values

outweigh the environmental costs. Robertson

v. Methow Valley Citizens Council, 490 U.S.

332, 350-51, 109 S.Ct. 1835, 104 L.Ed.2d 351

(1989); Paul Herman, 146 IBLA 80, 102

(1998). The purpose of preparing the EIS is to

inform the agency of possible adverse

environmental effects in hopes that the

agency can mitigate them. This expectation

was well rewarded in this case. As discussed

herein, BLM did not disregard the adverse

effects identified in its EIS/EIR, but

proceeded to carefully consider them (as well

as six other alternatives (ROD at 3)) and

develop mitigating measures to reduce or

eliminate them, in_- consultation with

Departmental agencies responsible for the

subjects presented. We find no basis to

disturb its decision.

My colleagues register concern that

eutrophication discussions are found only in

scattered sections of the EIS and that one has to “cull

through entirely unrelated sections of the EIS and

then put the pieces together” to find them. They call

this a “patchwork,” and they find such to be a fatal

flaw. All I can say is that (1) it was the Charpieds’

burden to identify the failures they alleged, (2) the

California Court of Appeal thoroughly examined and

analyzed the eutrophication allegations in 1999 and

had no trouble finding its way through the record, (3)

I had no trouble finding eutrophication in this

voluminous record, and (4) neither did the IBLA.

I note here that the DEIS contains an enormous,

detailed, and well-organized Table of Contents (with

appendices) spanning 17 pages. Only someone intent

on not finding what they hoped was not there could

fail to locate matters of their concern in this

admittedly gigantic document. But, the clear road

map is there.

To save space, lets go to the Response to

Comments section of the EIS:

A commenter has stated that ecosystem

impacts, such as eutrophication, are defined

in the “broad sense, referring to the large-

scale addition of nutrients (i.e., landfill trash)

to the desert ecosystem” (Appendix 2 of

Comment 1) and has requested that the

EIS/EIR explain the impact of the proposed

Project on the regional ecosystem, including

impacts on “subtle and interconnected plants,

animals, and _ processes, most of which

presently are unknown.” (NPS, Joshua Tree

National Park Issues Identification for the

Eagle Mountain’ Landfill Environmental

Impact Statement/Environmental Impact

Report, 1995). The JTNP Issues Identification

paper also identified possible ecosystem

impacts attributable to the Project (i.e., wet

dry deposition of nitrate, global warming, and

invasion of exotic species) and requested

additional studies and experiments to assess

ecosystem impacts. Upon review of the

requested studies and experiments suggested

by the NPS, the lead agencies determined

that existing data were available and

sufficient for assessing impacts to

biodiversity and ecosystem function. The

Draft EIS/ EIR addresses all these possible

impacts associated with the Project, including

habitat loss, additional nutrients originating

directly or indirectly from landfill material

(defined as “eutrophication” by NPS), the

introduction of exotic species, nitrate

deposition, and global warming.

For example, the Draft EIS/EIR (Section

4.7.4) states that the proposed Project could

affect biodiversity “primarily as a result of

loss of habitat, habitat fragmentation, and

changes in the relationship between species

in the form of increases in predator/scavenger

populations in response to increased food

availability at the landfill site, and from

increased roadkills.” The EIS/EIR presents a

full analysis and discussion of these impacts

and appropriate mitigation, where applicable.

Control measures’ proposed’ to _ be

implemented are described above in General

Response 3, and include continuous covering

of waste, limiting the work face to 2 acres or

less, litter fencing, litter patrols, and

providing additional cover for any area that

has not been active for 180 days.

To control conditions at the Townsite that

could also lead to an increase in predators,

measures identified for predator control will

also be employed at the Townsite. These

measures will include educating Townsite

residents of the factors that increase vaven

and other’ predator populations, and

restrictions requiring disposal of trash and

garbage only in tightly closing’ trash

receptacles. Areas around businesses will be

patrolled regularly to collect trash. Feeding

domestic animals outside in areas accessible

to ravens will be prohibited. Buildings and

other structures that could provide nest sites

for ravers will be monitored regularly. Other

restrictions on ‘Townsite activities are

described in Section 4.7 of the Draft EIS/EIR.

The mitigation measures proposed for the

Project address potential impacts to a broad

range of plants and animals that occur in the

Project area. Mitigation measures have been

identified, in consultation with the

appropriate regulatory agencies, for potential

impacts to all special status species, and will

be implemented as a condition of Project

approval. At the request of the [California

Department of Fish and Game] and other

resource agencies, additional mitigation

measures will be implemented for species

that have no protected status and/or are not

anticipated to experience significant impacts.

For example, the California Barrel Cactus is

not a protected species, but is considered an

important food and water source for Nelson’s

Bighorn Sheep, especially in time of drought.

Mitigation for this species’ includes

transplanting and monitoring to ensure the

success of transplanting. Similarly,

mitigation measures will be implemented for

the Common chuckwalla, which has _ no

formal protected status. These will include

surveying and removing individual animals

from Project areas. The aggregate of the

mitigation measures proposed for protected

and other species will help assure that the

biodiversity of the Eagle Mountain Project

area is protected and maintained. The

availability of the Environmental Mitigation

Fund as a tool to acquire and protect prime

habitats in the Southeastern California

desert will further contribute to the

protection of biodiversity and ecosystem

function.

Environmental Mitigation Trust

A number of commenters requested additional

detail about how the Draft Environmental

Mitigation Trust (Appendix U of the Final EIS/EIR)

would function and how it would contribute to the

mitigation of Project impacts. The overall goals and

functions of the Environmental Mitigation Trust, as

currently proposed, are described on pages 4.7-14 of

the Draft EIS/EIR. The Draft Trust includes

elements of the negotiated Agreement’ with

Kaiser/MRC and NPS and certain discussions with

CDFG. Specifically, the Draft Trust specifies that

72 percent of the fees would be used to acquire

lands that provide high-quality habitat for special

status species in the region. In addition, 18 percent

of the funds would be used for long-term

monitoring, research, and _= mitigation. The

remaining 10 percent of the funds would be used to

acquire private parcels in JTNP and for long-term

research and mitigation associated with potential

Project impacts to J'I’'NP. Lands to be acquired

would be identified by an advisory committee

appointed by the Trustees of the Trust (the County

of Riverside Board of Supervisors).

The Draft Trust agreement specifies that the nine

members of the advisory committee shall all be

residents of Riverside County and comprise two

members of the Board of Supervisors of the County

of Riverside; two citizens appointed by the Board of

Supervisors, one of whom must be a Native

American; two citizens nominated by the Coachella

Valley Mountains Conservancy; one citizen

nominated by The Nature Conservancy; and one

citizen nominated by The Desert Protective Council.

Because land acquisition expenditures would be

recommended by this advisory committee, specific

acquisition locations cannot be identified at this

time. The Draft Trust Agreement, however,

specifies that lands acquisition expenditures would

be restricted to or for the benefit of lands within 15

areas in desert environments of Southern California

identified in the Trust Agreement (with provisions

for expenditures in other project areas if acquisition

in the 15 identified areas have been reasonably met

and with the consent of 4 of the 5 trustees). The 15

areas listed as priority areas for acquisition were

identified in a January 1994 California Endangered

Species Act Memorandum of Understanding

between MRC and the CDFG.

Section 4.7.4 of the Draft EIS, “Biodiversity and

Ecosystem Function,” says:

The NPS has expressed concern that

operation of the landfill will result in

eutrophication (increased primary

productivity) at JTNP as a consequence of

atmospheric nitrate deposition. Atmospheric

nitrate deposition results from the emission

and transport of anthropogenically generated

nitrogen compounds. Sources _ include

agricultural emission of ammonia/

ammonium and organic nitrogen from animal

wastes and fertilizer applications, and oxides

of nitrogen emitted from _ fossil fuel

combustions (automobiles, power plants,

industry) (Paerl, 1993). Recent studies

indicate up to 30 kg/ha/yr of dry nitrate are

deposited primarily from automobiles in the

San Dimas Experimental Forest, just east of

Los Angeles (Personal Communication, Kathy

Freas/CH2M Hill with EK. Allen. August 17,

1995).

Increasing nitrate deposition is of concern

in desert ecosystems because desert soils

typically are nutrient poor and primary

production can be limited by nitrogen

availability. Increased nitrogen could

potentially allow the establishment and

spread of plant species that otherwise would

not occur in the desert because of nitrogen

limitations. Sources of nitrate associated with

the proposed Project are limited to fossil fuels

used by trucks and trains delivering waste to

the landfill and to the use of personal vehicles

and home heating for occupants of the

Townsite. Landfill gases include _ only

methane and carbon dioxide and are not a

source for oxides of nitrogen. The small

amounts of nitrate produced as a result of

fossil fuel use associated with landfill

operation would be eclipsed by the amount of

nitrate produced in the Los Angeles Basin

and in urban desert communities closer to the

landfill. Additionally, nitrate is transported

by prevailing winds, which are westerly in

the vicinity of the proposed Project. Because

the landfill is southeast of JTNP, nitrates

generated from landfill operations would be

transported away from JTNP rather than

toward it. JTNP expects to see an increase in

visitorship to the park to 4 million persons

per year by the year 2010 (NPS, 1995). Many,

if not most, of these visitors will arrive by

automobile and will drive through the park

This source of nitrates from fossil fuel

combustion is expected to be greater than

that produced by landfill operations. Nitrate

deposition associated with landfill operations,

therefore, is expected to have no effect on

ecosystem function [in] JTNP (see Section 4.4

Air Quality).

Then, there is the Agreement with the NPS

covering ravens and other predators, which addresses

any unanticipated predator and raven problems

about which the Charpieds worry

3.6 DESERT TORTOISE-Kaiser/MRC shall

undertake the following. obligations in

connection with the Desert Tortoise

3.6.1. Conduct and continue the existing

raven monitoring program from at least

twelve (12) months prior to commencement of

operation for a period of at least 10 years.

3.6.2. Conduct, beyinning at least twelve

({2) months prior to commencement of

operation of the Project and continuing for a

period of at least 10 years, a_ predator

monitoring program at the Project.

3.6.3. Mitigate potential increases in raven,

coyote, kit fox, and other — predator

populations caused by the presence of trash

at the Project. If the Common Raven

population in the region of the Project

increases as a result of landfill activities,

then an active control program will be

instituted. Kaiser/MRC will present its

control plan and depredation permits to NPS

prior to start up of the landfill. If control

measures are instituted, but found to be

ineffective, Kaiser/MRC will revise its control

plan and implement a new plan.

3.6.4. Fence the perimeters of all active

landfilling and waste handling areas with

fencing designed to exclude large scavengers

and place a minimum of 6 inches of

appropriate cover maternal over deposited

and compacted refuse on a daily basis to

minimize raven, rodent, and other

opportunistic scavenging.

3.6.5. Conduct, upon commencement of

landfill operations, a non-lethal predator

control program, that will, as a minimum

include hazing at the landfill site, coyote and

kit fox aversion (aversive conditioning)

techniques, prompt removal of road-killed

wildlife along access roads, and the possible

use of bird repellent methyl] anthranilate.

The California Court of Appeal had this to say in

1999 about eutrophication:

Eutrophication (Nutrient Addition)

In its ruling, the [Superior] court found

insufficient evidence to support the EIR’s

conclusion that impacts to the Park will be

less than significant regarding “the impact of

the landfill on the biological resources of the

[P]ark as a complex and interrelated system,

which the [NPS] describes as eutrophication.”

In 1995, the Park staff requested that as part

of the EIR process, the involved agencies

study the phenomenon of adding nutrients

(trash) to the dry, harsh desert landscape,

possibly causing insects and_ rats to

proliferate, then starting the food chain going

full tilt and upsetting the Park ecosystem.

(This phenomenon is termed eutrophication

after the similar effects of adding nutrients to

lakes and upsetting their ecosystems.) The

Park recommended such studies as computer

modeling and animal tracking (trapping rats

and insects at existing landfills, and

inventorying animal feces to analyze whether

human-generated trash was being

transported) for several years to project the

impact of the landfill, if it were to be built.

The EIR approached this problem in several

ways, directed toward containment of the

refuse: (1) The EIR proposed such measures

as keeping incoming refuse in_ sealed

containers until transported to a_ limited

working area, creating litter fences,

conducting a storm watch to avoid the

scattering of materials by windstorms, and

covering the waste with dirt and mining

debris to avoid access by ravens. Similar

measures have proved effective at other

landfills. (2) The landfill will have a state-of-

the-art liner and operations design as part of

the system for confining the waste. (3)

Studies were made of the Los Angeles

experience with landfills, in which rats were

fitted with radio transmitters and

researchers found that daily landfill

operations (bulldozing and compacting waste)

kill rats. Other studies have shown that

insects do not proliferate at landfills if daily

cover is properly applied. (4) All ponds and

water sources will be covered and the areas

fenced to prevent access by predators such as

ravens, coyotes, or kit foxes. (5) The

proponents entered into the mitigation

agreement with the NPS to provide for

additional mitigation measures if necessary.

(6) The EIR includes responses to comments,

including the Park issues _ identification

paper, stating that the lead agencies

determined that existing data were available

and sufficient to address impacts _ to

biodiversity and ecosystem function. The EIR

addresses such possible impacts. from the

project as “habitat loss, additional nutrients

originating directly or indirectly from landfill

material (defined as ‘eutrophication’ by NPS),

the introduction of exotic species, nitrate

deposition, and global warming.” The

comments give the example that biodiversity

could be affected by “ ‘changes in the

relationship between species in the form of

increases in predator/scavenger populations

in response to increased food availability at

the landfill site, and from increased road

kills” “These impacts and = appropriate

mitigation were discussed in the EIR.

Natl Parks & Conservation Ass’n v. County of

Riverside, 71 Cal.App.4th 1341, 84 Cal.Rptr.2d 563,

576 (1999). “It is speculative whether’ the

eutrophication effect will occur, but if it does the NPS

agreement provides for environmental mitigation

measures to deal with the problems.” Id. at 577.

In conclusion, my colleagues claim that “[t]his

patchwork cannot serve as a ‘reasonably thorough’

discussion of the eutrophication issue” demonstrably

and grossly mischaracterizes the record, and is flatly

wrong. It inappropriately gives the back of this

Court’s hand to a massive and thorough process and

resulting responsible environmental decisions and

documents.

HIGHEST AND BEST USE

The appellees now claim pursuant to the FLPMA

that BLM’s appraisal of the value of the federal land

to be transferred to Kaiser for the landfill failed to

consider the “highest and best use” of that property

as part of the intended commercial landfill. Their

untimely assertion is that BLM’s selection of

potential land uses for its highest and best use

determination did not include the use as a landfill as

one of its markers. See 43 C.F.R. § 2201.3-2(a)(1), (2).

They argue that Kaiser is not paying enough for the

federal lands it seeks to acquire.

Failure to Exhaust

The first problem with this newly-minted claim is

that the plaintiffs did not present it to the IBLA, as

they were required to do pursuant to the

jurisdictional doctrine of exhaustion. Great Basin

Mine Watch v. Hankins, 456 F.3d 955, 965 (9th

Cir.2006) (“The APA requires that plaintiffs exhaust

administrative remedies before bringing suit in

federal court. 5 U.S.C. § 704. This requirement

applies to claims under NEPA.”). I draw this

conclusion from the Statements of Reasons for their

appeal to the IBLA-one from the NPCA and one from

the Charpieds.

First, the NPCA’s Statement of Reasons for the

appeal:

Il. THE BLM WILL NOT RECEIVE FAIR

MARKET VALUE FOR THE EXCHANGE.

Any disposal of federal land must be

compensated at “fair market value of the use

of public lands and their resources.” 43

U.S.C.A. § 1701(a). Here, the compensation

being offered in exchange for the public lands

in question is inadequate, and egregiously

low. As a part of the land exchange, BLM will

hand over 3,481 acres of federal land just

outside Joshua Tree, providing the bulk of

lands needed by Kaiser for the proposed

Landfill. In return, Kaiser will transfer 2,486

acres of private land to BLM. To compensate

for the approximately 1,000-acre differential,

Kaiser will also pay BLM a lump sum of

$20,100, which is well below the fair market

value. Kaiser anticipates huge profits from a

landfill operation on the undervalued BLM

land, well beyond the $20,000 amount that

would be paid for approximately one third of

the property. Here again, Kaiser and a few

other parties will benefit at a significant cost

borne by the national treasury.

As for specific defects in the method of evaluation,

this is what NPCA said:

Here, BLM’s own analysis reveals its failure

to incorporate wildlife and aesthetic value

into the valuation of the federal lands. An

appraiser, in determining market value,

“shall include historic, wildlife, recreation,

wilderness, scenic, cultural, or other resource

values.” 43 C.F.R. 2201.3-2(a)(3). Certainly,

BLM land in close proximity to Joshua Tree

(1.5 miles away) carries significant wildlife,

wilderness, scenic, and cultural value to the

one million yearly visitors to Joshua Tree.

The land exchange appraisal prepared for

BLM does not accurately reflect this value.

Nowhere does this statement with sufficient

clarity identify as a flaw BLM’s alleged failure to

value its lands as part of a proposed landfill, nowhere

does it use the term “highest and best use.” The

reason given is. generic and not specific or

particularized.

‘“{AJdministrative proceedings should not be a

game or ae forum to engage in_ unjustified

obstructionism by making cryptic and _ obscure

references to matters that ‘ought to be’ considered

and then, after failing to do more to bring the matter

to the agencies’ attention,” seeking to attack it in

court. Vt. Yankee Power Corp. v. Natural Res. Def.

Council, Inc., 435 U.S. 519, 553-54, 98 S.Ct. 1197, 55

L.Ed.2d 460 (1978). The purpose of the exhaustion

requirement is two-fold. The requirement is designed

(1) to “avoid [ ] premature claims,” and (2) to

“ensur[e] that the agency be given a chance to bring

its expertise to bear to resolve a claim.” Great Basin

Mine Watch, 456 F.3d at 965 (quotation omitted). The

NPCA’s’ statement, vaguely alleging without

explaining why the land was undervalued, serves

neither of the twin objectives of exhaustion. The proof

of this pudding is in the eating. Nowhere in the

IBLA’s decision is the valuation as a landfill “issue”

addressed, and not because they overlooked it, but

because the plaintiffs did not raise it. Everything the

plaintiffs did raise was addressed.

The Charpieds’ Statement of Reasons for the

appeal is no better; in fact, it is worse. In what

amounts to a 36-page jeremiad laced with invective

and unsupported allegations of corruption, payoffs,

and kickbacks against numerous individuals and all

the agencies’ involved-including the Nature

Conservancy-they attack everything in sight-except

the BLM’s choice of its appraiser’s method of

valuation. Again, no mention of a valuation-as-a-

landfill deficiency, no use of the words “highest and

best use,” and no reference to the relevant valuation

rules. Instead, we find statements like this: “We

charge the California BLM with the under-value of

the select public lands in their continual serving of

preferential treatment to the developers, while

ripping off the taxpayers.” “The taxpayer is being

swindled.” “BLM lhied....”. “The U.S. Attorney

advances ‘lame _ contentions’....”. “The BLM

shamelessly extorts from the Constitution and the

people [powers it doesn’t have].” “Gee, some guys

{like Kaiser] get all the breaks.” “In short, the smooth

talking polluters played Washington D.C. officials

like a fiddle.” “Payola.” “If we haven’t made ourselves

clear, perhaps this is a good time to remind the

[Administrative Law Judge] that this proposal stinks

of back room deals, hidden agendas and intrigue,

lacks any semblance of integrity or ethics in

government, and 1s worthy of an Inspector General’s

investigation.”

The only thing that is clear about this Statement

of Reasons is that the Charpieds are against this

proposal. They are not interested in a “hard look,”

only in stopping the project, period. Interspersed

between all the unproductive name calling, they raise

every objection one might imagine-except the issue of

“highest and best use” upon which they now attempt

to prevail. Shades of Vermont Yankee.

Looking at the IBLA’s opinion, one sees that the

IBLA directly addressed all the objections the

Charpieds and NPCA did raise. This fact underscores

the wisdom of the exhaustion rule. If you raise it, the

IBLA will examine and answer it. Again, I turn to the

record:

Section 206(b) of the FLPMA requires

that the values of the public and private

lands exchanged be equal or equalized by the

payment (absent waiver in appropriate

circumstances) of not more than 25 percent of

the total value of the land transferred out of

Federal ownership. 43 U.S.C. § 1716(b)

(1994); 43 C.F.R. §§ 2201.3(a) and

2201.5(c)(2); see Brent Hansen, 128 IBLA 17,

19 (1993); Havasu Heights Ranch &

Development Corp., 102 IBLA 1, 7-8 (1988).

The Charpieds assert that BLM

undervalued the selected public lands taken

by KEM in the exchange (Charpieds’ SOR at

1-2), suggesting that it did not meet the

requirements of 43 C.F.R. §§ 2201.3(a) and

2201.5(c)(2). NPCA also argues that BLM will

not receive fair market value for the

exchange. (NPCA SOR at 5-6). It is well

established that a party challenging an

appraisal determining fair market value is

generally required to either show error in the

methodology used in determining fair market

value or, alternatively, submit its own

appraisal establishing fair market value. See

Voice Ministries of Farmington, Inc., 124

IBLA 358, 361 (1992); High Country

Communications, Inc., 105 IBLA 14, 16

(1988). Appellants have submitted no

appraisal here. Nor have they shown error in

the methodology of the appraisal. We

accordingly do not agree that the public is not

receiving full value for the selected public

lands. In these circumstances, the BLM

appraisal is properly upheld. See, e.g., Brent

Hansen, 128 IBLA at 19; City of Santa Fe (On

Judicial Remand), 120 IBLA at 315; Burton

A. McGregor, 119 IBLA at 105.

We specifically reject the Charpieds’

argument (SOR at 1) that BLM failed to

properly value the reversionary interest in

the tract of land they describe as _ the

campsite/millsite lands. BLM instructed the

appraisers to appraise the _ reversionary

interest in the surface estate of the tract in

terms of the “fee simple estate, disregarding

the [e]ffect of any title encumbrances,”

including the reversionary interest, and to

appraise the tract “as if in a raw, unoccupied

state, disregarding any of the existing

improvements.” (Appraisal Report, Vol. II, at

iv, 4, 14). The record indicates that these

instructions resulted from an agreement

between BLM and KEM which was designed

to resolve the problem of how to appraise the

reversionary interest, under which KEM

agreed to pay for the full fee simple title to

the campsite/ millsite lands even though it

already held the principal interest in those

lands. (Letter to BLM from KEM dated May

5, 1993). The surface estate was patented to

KSC in 1955 and was being held subject only

to KEM’s continued compliance with the

terms of the patent. So long as it did so, KEM

could hold the surface estate indefinitely,

subject to the possibility of reverter. We find

no fault with this compromise, and appellants

have provided no basis to disturb it. To avoid

even the possibility of undervaluing its

reversionary interest, BLM instructed the

appraiser to value that interest as if it were a

fee simple interest in the surface estate of the

land, that is, as if the reverter had occurred.

This undoubtedly increased the _ value

attributable to the reversionary interest, thus

maximizing its value for purposes of the

exchange and benefitting tne United States

by increasing the overall value of the selected

public lands in the exchange.

We also reject the Charpieds’ argument

(Charpeids’ SOR at 1) that, by disregarding

revenue from improvements that have been

built on the campsite/ millsite lands, BLM

undervalued the reversionary interest. That

argument disregards the critical fact that, if

the lands ever had reverted to the United

States, those improvements could _ be

removed. Such improvements and associated

“revenue stream” belong to KSR and its

successors, not to the United States, which

has no claim to reimbursement for their

value.

By the same token, the valuation of the

offered private lands is not defective because

it did not include the value of railroad tracks

which cross the property (see Charpieds’ SOR

at 2), as those improvements will not belong

to the United States following the exchange,

but will remain in Kaiser’s possession on the

property under authority granted by the

right-of-way. In these circumstances, it was

appropriate to value the lands “as if in a raw,

unoccupied state, disregarding any of the

existing improvements,” (Appraisal Report,

Vol. III at 5, 23), as those improvements can

be removed by the right-of-way holder.

The Charpieds assert that the appraisal

misstates the present use classification of the

selected public lands as “designated for Open

Space and Conservation.” (Charpieds’ SOR at

1-2). We are unable to find such statement,

and the Charpieds provide no citation. The

appraisal Report expressly states to the

contrary that the selected public lands were

“appraised based on [their] estimated highest

and best use as if available in the open

market, in accordance with the underlying

zoning regulations, County of Riverside

General Plan land use recommendations, and

[CDCA] Plan land use recommendations”

(Appraisal Report Vol. I at 43-44), concluding,

in view of the absence of “imminent

development potential,” that “the highest and

best use of the selected public lands is

estimated to be holding for’ speculative

investment and future capital appreciation.”

Id. at 47.

The Charpieds argue that the Notice of

Exchange Proposal (NOEP) violated 43

C.F.R. § 2201.2(a)(1), because it failed to

name Kenneth Statler as a party “involved in

the present exchange.” (Charpieds’ SOR at 2).

Appellants have failed to show that Statler,

who apparently at one time held a leasehold

interest in a portion of the campsite lands

that has now expired, owns any interest in

the lands involved in the exchange.

Accordingly, we agree with KEM that he is

not “involved in the present exchange” and

need not have been identified under 43 C.F.R.

§ 2201.2(a)(1). Nor did the NOEP need to

mention MWD (Charpieds’ SOR at 20), which

is not a participant in the exchange, but is

instead the grantee of a right-of-way.

The Charpieds also argue that the NOEP

violated 43 C.F.R. § 2201.2(a)(2) by not

identifying 400 acres of desert tortoise

habitat that KEM will donate to BLM. That

“donation” is actually being made as

mitigation for the expected loss of desert

tortoise habitat caused by the widening of

Eagle Mountain Road. We agree with KEM

that it was not required to list those lands in

the NOEP because, at the time of the

preparation of that document, the extent of

loss of habitat was not known and could not

have been accurately foreseen. At this time,

KEM has committed itself (as a condition of

the land exchange agreement) to purchase

400 acres of tortoise habitat and donate it to

the United States for preservation to mitigate

expected damage to 160 acres of tortoise

habitat resulting from the widening of Eagle

Road. We find nothing impermissible in that.

The valuation of the selected public land and

offered private lands are not affected. Public

involvement in this process can await the

execution of the agreement.

Both NPCA and the Charpieds argue that

BLM erred by failing to take into account

that title to the campsite/millsite lands had

reverted to the United States because the

terms of the reverter in the patent had

occurred. Indeed, they presume that title to

the lands has reverted and make further

assumptions accordingly. See, e.g., Charpieds’

SOR at 2-3 (asserting that KEM’s occupancy

of these lands is trespass, and challenging the

legality of a lease of surface rights issued by

KEM to Statler). In view of the fact that BLM

has agreed to deed its interest in the lands

(whatever it may be) to KEM, this land

exchange will resolve these questions once

and for all. As noted above, BLM has valued

the campsite/ millsite lands as if the land had

already reverted to the United States. This

moots the question of whether title to the

lands has, in fact, reverted.

There is no doubt that the Charpieds were aware

90)

of the precise “highest and best use” argument they

chose not bring to the attention of the IBLA. They

asserted this very same argument in earlicr cases;

see, e.g., Donna Charpied, 137 IBLA 45, 47 (1996). To

quote the IBLA from that case,

They [the Charpieds and others] contend that

the appraisers failed to consider that the

lederal land to be exchanged is proposed to be

used as a landfill, and that, as a result, the

land should be ... valued in comparison to

landfill sites, instead of being treated as mine

support lands....

Id. (emphasis added).

Notwithstanding their clear awareness of this

“comparison” issue, the Charpieds did not raise it in

this matter until they arrived in federa’ court, an

acute violation of the exhaustion rule. ‘en, they

finally hired their own appraiser-Stephen Roach-and

offered to the district court new “evidence” on this

new issue. Too late, fatally too late. NPCA recognizes

this deficiency, claiming that to have raised this

valuation issue to the IBLA would have been “futile.”

NPCA’s Answering Brief at 56. Why futile? Because

it did not work in the Charpieds’ earlier case. In

short, both decided not to pursue it here-but only the

NPCA explains why.

The Herzog Appraisal

Nevertheless, when they did insert this new issue

into the district court case, allegedly supported by an

appraiser, Stephen Roach-who was never involved in

the administrative process at ail-BLM did what it

would have done had it been given timely notice of

this additional concern: they hired a new independent

appraiser-Steven Herzog-to evaluate it. So much for

futility. BLM instructed Mr. Herzog independently to

review David Yerke’s earlier 350 page appraisal “[i]n

light of the Desert Citizens decision,” referring to our

opinion in Desert Citizens Against Pollution v. Bisson,

231 F.3d 1172 (9th Cir.2000). In that case, we held

that the use of property should be “considered” in

evaluating the highest and best use. Desert Citizens,

231 F.3d at 1180-84. The purpose of Mr. Herzog’s

report was to “supplement the administrative

record.”

Steven Herzog holds the designation of MAI from the

Appraisal Institute. He is also a Certified General

Real Estate Appraiser in California, a Registered

Professional Forester, and the President of the

Herzog Group. To assist him in this endeavor, he.

hired the Recon Research Corporation for its discount

rate as applied to future income for landfill lands

expertise, and EMCON, a civil engineering company

with landfill experience.

Despite the Charpieds’ fatally tardy assertion of

this matter, Mr. Herzog did what BLM and Desert

Citizens asked him to do: he thoroughly considered

the value of the land in connection with its value as a

landfill and filed his report accordingly. He concluded

as of the relevant date that the landfill was “not a

financially feasible use of the selected [federal] land.”

It follows that the “highest and best use” of the

federal lands being appraised could not have been for

a landfill. He noted that as of 1993, “difficulties faced

by landfill developers in obtaining required approvals

impacted the ability and desire of companies to

finance such projects.” He pointed out that operators

such as Waste Management, Inc., Western Waste,

and BFI began to abandon their investments. He

opined that “[t]he opportunity costs of investing tens

of millions of dollars in a high-risk venture, without

any return on that investment for at least ten years

are enormous,” and that “[a] knowledgeable investor

with millions of dollars to invest would not have

considered investment in a rail-haul landfill to be the

route to obtaining a reasonable return on the

investment.”

So, if this is true, that there was no market for

the federal lands as a landfill, why would Kaiser

doggedly pursue this proposal? Because Kaiser

already owns the abandoned holes in the ground and

the railroad necessary to serve it and has a

considerable investment in the project. The idea that

someone else might purchase the selected federal

lands for a landfill 1s palpably and demonstrably

hallucinatory.

This is what Mr. Herzog has to say about Kaiser’s

determined motivation in a declaration provided to

the district court summarizing his 108-page report

(plus attachments) submitted to BLM:

61... . Under this analysis, the net present

value [“NPV”] of the income generated from

the project would be $2.48 million. Not

included in the calculation of this figure is

any allowance for entrepreneurial profit, the

$13 million spent on _ permitting after

September 25, 1997, the $17 million that

would be required to upgrade the railroad

and relocate and upgrade the paved road, or

any allowance for on-site infrastructure cost

and staffing. Consequently, the NPV for the

net income to the landfill operation is

dwarfed by the expenditures that would be

required to obtain that income-a conclusion

BFI obviously reached in 1994. Report pp.

106-107.

62. I reached the conclusion that, as of the

effective date, landfill use was not financially

feasible. Yet, Kaiser and its remaining

associated investors went on to spend $13

million more pursuing final permits. Through

1994, approximately $49 millon had been

spent on the project. However, BFI had spent

$45 million of that, and walked away. The

remaining proponents had only $4 million

invested, but the only way to recover any of

the investment was to press on with the

permitting effort. The internal dynamics of

the stakeholders in the endeavor created a

situation where motivations existed that were

different from what a single entity, which had

been solely financing the project from the

beginning, would have faced. Report p. 108.

63. In addition, the expectation constantly

existed that the time when final permits

would be obtained was near at hand. The

obtaining of the goal always seemed to be

near enough that continued expenditures

were justified. To stop the process would have

meant the forfeiting of all prior expenditures,

because the final permits were needed to put

the project in its most marketable condition.

As noted earlier, the pending sale is

contingent upon final permits being obtained

and all litigation being resolved. Report p.

108.

64. The conclusion of Mr. Roach that a

landfill was economically feasible is based

completely on the observation that Kaiser

was investing in a landfill at the site. First,

this “observation” is not a proper method of

assessing the economic feasibility of a landfill

use. See definition of economic feasibility at J

11. Moreover, this “observation” does not

consider the circumstances and history of

Kaiser’s investment in the project or the fact

that Kaiser, since it owned the railroad, the

permits, and other aspects of the project

related to the selected lands, had different

motivations than others in the marketplace

would have had. Mr. Roach’s conclusion

appears to be without market support, and is

based on an incomplete understanding of the

factors motivating Kaiser to continue to

invest in Kagle Mountain.

Kaiser is correct when it argues that BLM’s chief

state appraiser in California, Nancy Ortiz, reviewed

Mr. Herzog’s report and said in a 12-page report:

From my review it appears that Mr.

Herzog has been conscientious in providing

an independent analysis and his report meets

applicable [UAS] and Federal standards and

the requirements of the instructions for the

assignment Provided by the BLM. He has

zed the subject’s potential

landfill as a hi. shest and best use, using

appispriats ‘mathods and consultants, and

provided a feasibility conclusion based on his

analysis. As the reviewer, I believe that the

appraiser has addressed concerns relative to

the landfill as a potential highest and best

use...

The BLM District Manager added this perspective to

Mr. Herzog’s appraisal:

We feel the administrative’ record

supports BLM’s decision in this case, and

disagree with Plaintiffs assertions to the

contrary. However, in light of the Ninth

Circuit’s opinion in Desert Citizens, we felt

an independent analysis of whether a landfill

was the highest and best use of the federal

lands was justified. We were prepared to

accept the results of this new analysis,

regardless of its implications to the District

Manager's decision of September 25, 1997.

In conclusion, he said, “I have reviewed Mr. Herzog’s

report and found nothing which indicates that it is

necessary to revise or revisit the District Manager’s

decision of September 25, 1997 approving the

exchange.” This decision was served on the Charpieds

in January, 2003; and Mr. Herzog’s report, plus the

reports of the chief appraiser and the district

manager were formally made part of the

administrative record and officially certified and

lodged as such with the district court on February 7,

2003. How my colleagues can claim that this is not a

“final, appealable decision” is a mystery.

Did the plaintiffs timely appeal the District

Manager’s final conclusion to the IBLA, as they could

have pursuant to 43 C.F.R. § 4.410(a)? No. This

failure alone should bar them from bringing it

sideways into this case. So what the Charpieds say

BLM did not do has in fact been done, and remains

unchallenged by them.

We faced a similar problem in Warm Springs

Dam Task Force v. Gribble, 621 F.2d 1017 (9th

Cir.1980). In that case, a deficiency in the Army

Corps of Engineers NEPA process had been cured

during litigation. Calling these “supervening events,”

we denied remand to the Corps because the Corps

had already conducted studies definitively to answer

the matter at issue. Jd. at 1026. As we said in Friends

of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th

Cir.2000), “if extra-record evidence shows that an

agency has rectified a NEPA violation after the onset

of legal proceedings, that evidence is relevant to

[what] relief should be granted.” See also Forest

Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1095-

96 (9th Cir.2003). At the very least, we should follow

this example. BLM has done what we suggested in

Desert Citizens. It has thoroughly “considered” the

issue and issued a manifestly defensible answer. To

remand at this point is a clear exercise in blind form

over substance.

CONCLUSION

I end with the Technical Advisory Panel’s

evaluation: “the proposed Eagle Mountain Landfill

could well become one of the world’s safest landfills

and a model for others to emulate.” Don’t hold your

breath.

APPENDIX B

District Court Opinion

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA -

EASTERN DIVISION

DONNA CHARPIED, et al.,

Plaintiffs,

Vv.

UNITED STATES DEPARTMENT

OF THE INTERIOR, et al.,

Defendants.

ED CV 99-0454 RT (Mex)

ED CV 00-0041 RT (Mcx)

ORDER (1) GRANTING IN

PART AND DENYING IN PART

PLAINTIFFS DONNA AND

LAWRENCE CHARPIEDS'

(“CHARPIEDS’) MOTION FOR

SUMMARY JUDGMENT IN

CASE NO. ED CV 99-0054 RT

NATIONAL PARKS AND

(Mex); (2) GRANTING IN PART

AND DENYING IN PART

)

CONSERVATION ASSOCIATION, ) DEFENDANTS’ MOTION FOR .

)

Plaintiff,

Vv.

BUREAU OF LAND

MANAGEMENT, et al.,

Defendants.

SUMMARY JUDGMENT IN

) CASE NO. ED CV 99-0054 RT

) (Mex); (3) GRANTING IN PART

) AND DENYING IN PART

) PLAINTIFF NATIONAL PARKS

) AND CONSERVATION

) ASSOCIATION’S MOTION FOR

) SUMMARY JUDGMENT IN

) CASE NO. ED CV 00-0041 RT

_) (Mex); (4) GRANTING IN PART

AND DENYING IN PART

DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT IIN

CASE NO. ED CV 00-0041 RT

(Mex); (5) ENJOINING

DEFENDANTS FROM

CERTAIN ACTION; (6)

REMANDING BOTH ACTIONS

TO THE BUREAU OF LAND

MANAGEMENT FOR

PROCEEDINGS CONSISTENT

WITH THIS ORDER; AND (7)

RESERVING JURISDICTION

The court, Judge Robert J. Timlin, has read and

considered plaintiffs Donna Charpied and Lawrence

Charpied (“the Charpieds”), the Desert Protection

Society, the Center for Community Action and

Environmental Justice, and the National Parks and

Conservation Association (“NPCA”) (collectively,

“Plaintiffs”) motions for summary judgment with

respect to the Charpieds’ Second Amended Complaint

(“SAC”) and the NPCA’s First Amended Complaint

(“FAC”),! defendants U.S. Department of the Interior

(“DOI”), Bureau of Land Management (“BLM”),

Kaiser Eagle Mountain, Inc. (“Kaiser”), and Mine

Reclamation Corporation (“MRC”) (collectively,

“Defendants”)’ joint motion for summary judgment

with respect to the Charpieds’ SAC and the NPCA’s

FAC, and all opposition and reply papers. Finally, the

Court has considered the underlying administrative

record. Based on such consideration, the court

concludes as follows:

' ‘The Charpieds’ SAC and the NPCA’s FAC seek review of

the same BLM administrative actions. Although no motion for

consolidation was ever brought in these actions, pursuant to

stipulation of all parties and by order of this court, the parties

briefed at the same time the issues presented by both the

Charpieds’ SAC and the NPCA’s FAC. This order on the parties’

respective summary judgment motions, therefore, is dispositive

as to both the Charpieds’ action (ED CV 99-0454 RT (Mcx)) and

the NPCA’s action (ED CV 00-0041 RT (Mcx)).

100

BACKGROUND

The Charpieds filed a Second Amended

Complaint (“SAC) against Defendants DOI, BLM,

National Park Service (“NPS”), Gale Norton,

Secretary of the DOI, Kathleen Clarke, Director of

BLM, Mike Pool, California State Director of BLM,

Linda Hansen, Acting California Desert District

Manager of BLM, Fran Mainella, Director of NPS,

Kaiser and MRC alleging violations of the National

Environmental Policy Act (“NEPA”), 42 U.S.C. §

4321, et seq., the Federal Land Policy and

Management Act (“FLPMA”), 43 U.S.C. § 1701, et

seq-* the National Park Service Organic Act, 16

U.S.C. § 1, et seqg., and the California Desert

Protection Act, 16 U.S.C. § 410aaa-21, et seq., and

seeking declaratory and injunctive relief, as well as

attorneys’ fees and costs.

The NPCA filed a First Amended Complaint

(“FAC”) against Defendants DOI, Kaiser and MRC

alleging similar violations and seeking the same type

of relief.

UNCONTROVERTED MATERIAL FACTS

The following facts are uncontroverted material

facts supported by admissible evidence:

Eagle Mountain Landfill and Recycling Center

Project (“Project”) is a “Class III non-hazardous solid

101

waste landfill” proposed on the _ site of an

unreclaimed, inactive open-pit iron ore mine owned

by Kaiser and leased to MRC. The proposed Eagle

Mountain Landfill site comprises approximately

4,654 acres, of which about 2,164 acres will be used

for disposal of waste. The inactive mine consists of

four large open pits, each approximately one to two

miles long, three of which will not be part of the

Project and, therefore, will not be reclaimed in any

manner by the Project. As part of the mining

operation, Kaiser developed a 52-mile long privately

owned rail line connecting the mine site to the main

line of the Southern Pacific Railroad.

The mine is located in Riverside County,

California (“the County”).

The mine is bordered on the north, west, and

southwest by the Eagle Mountains and on the east

and southeast by the Chuckwalla Valley. The

southern and eastern boundaries of Joshua Tree

National Park (“Joshua Tree”) are, in certain places,

less than two miles from the mine.

Joshua Tree contains unusual desert plants and

animals and spectacular geologic features, is part of

an International Biosphere Reserve, is designated as

a Class I airshed under the federal Clean Water Act,

and provides important habitat for bighorn sheep,

desert tortoises, deer, coyotes, bobcats, mountain

lions, and a wide range of birds and reptiles.

The vast majority of Joshua Tree’s 794,000 acres

is designated or being managed as wilderness areas.

102

BLM is authorized to dispose of public lands by

exchange under Section 206(a) of FLPMA.

In 1989, Kaiser submitted an application to BLM

for a land exchange to facilitate the construction and

operation of the Eagle Mountain Landfill.

Because the proposed landfill also required

approvals from the County, Kaiser filed applications

with the County on or about June 8,1989, requesting

the necessary local approvals for the landfill,

including zoning change, a specific plan of land use,

and an amendment to the comprehensive general

plan.

The land exchange was a “major Federal action

having a significant impact on the quality of the

human environment” under NEPA. Thus, BLM

prepared an Environmental Impact Statement

(“EIS”) pursuant to 42 U.S.C! § 4332(2)(C).

The County and BLM worked together to prepare

a joint Federal ElS/California State Environmental

Impact Report (“EIS/EIR”). In 1992, the BLM and the

County issued a Joint Final EIS/EIR analyzing the

environmental effects of the landfill project.

During the preparation of the 1992 Final

EIS/EIR, NPS expressed concerns about the impact

of the Project on Joshua Tree. On or about July

26,1994, the California Superior Court for the County

(“State Court”) found the 1992 Final EIS/EIR

deficient under the California Environmental Quality

Act (“CEQA”) and ordered that the County vacate its

permits and prepare a new EIR. On or about March

103

10, 1995, BLM requested that the Interior Board of

Land Appeals of the DOI (“IBLA”) IBLA remand the

matter to BLM in order to give it jurisdiction to

enable it to join the County in preparing a new

EIS/EIR. On or about April 27,1995, IBLA granted

KBLM’s request, vacated the Record of Decision

(“ROD”), and remanded the matter to the BLM. On or

about May 12,1995, BLM asked the NPS to be a

“cooperating agency” in the preparation of the new

KIS/EIR and NPS agreed to so act on or about June

20,1995.

On or about April 10, 1996, BLM requested an

updated independent appraisal of the land to be

exchanged and the reversionary interest held by the

United States in land patented to Kaiser in 1955.

On or about June 14,1996, NPS provided BLM

with follow-up comments on the Draft EIS/EIR.

On or about September 25,1996, David Yerke

completed his updated independent appraisal of the

land to be exchanged, including the reversionary

interest held by the United States in land patented to

Kaiser in 1955.

In January, 1997, BLM approved the 900-page

final EIS/EIR.

On or about April 24,1997, BLM approved the

updated independent appraisal. BLM concluded that

the updated appraisal met all applicable standards

and accurately reflected the value of the selected

public lands and the offered lands.

104

On September 25,1997, BLM’s California Desert

District Office Manager Henri R. Bisson issued a

ROD approving the land exchange between Kaiser

and BLM and announcing a final decision issuing the

two rights-of-way to Kaiser would be withheld

“pending receipt and review of any protest to the land

exchange.”

On December 9,1998 the California State

Director, BILM approved the issuance of the two

rights of way.

On or about January 11,1999, the Charpieds and

NPCA noticed their appeal to the IBLA from BI.M’'s

denial of their protests to the land exchange, and

challenged BI.LM’s decision to grant certain riphts-of-

way.

On September 30,1999, the IBLA Administrative

Judge David L. Hughes issued an opinion denying

the appeals of the Clarpieds and NPCA and

affirming the BLM land exchange and BI.M’s

approval of the rights-of-way.

In October 1999 the subject land exchange was

effectuated by the filing of grant deeds with the

County Recorder.

III.

ANALYSIS

A. Subject Matter Jurisdiction

Defendants contend that this court does not have

subject matter jurisidiction over the instant action

105

because (1) Plaintiffs have failed to exhaust their

administrative remedies, and (2) Plaintiffs have

failed to seek judicial review of the _ proper

administrative decision.

1. Exhaustion of Administrative

Remedies

a. FLPMA Claim

Defendants contend that Plaintiffs have

failed to exhaust their administrative remedies with

respect to their FLPMA claim. Specifically,

Defendants assert that Plaintiffs are barred from

urging that a landfill should have been considered as

the highest and best use of the exchanged lands

because that contention was not first presented to the

IBLA.

Defendants’ position is without merit. [In its brief

on appeal to the IBLA, NPCA stated the following:

Any disposal of federal land must be

compensated at “fair market value of the

use of public lands and their resources.” 43

U.S.C.A. § 1701 (a). Here,’ the

compensation being offered in exchange for

the public lands in question is inadequate,

and egregiously low. As part of the land

exchange, BLM will hand over 3,481 acres

of federal land just outside Joshua Tree,

providing the bulk of lands needed by

Kaiser for the proposed Landfill. In return,

Kaiser will transfer 2,486 acres of private

land to BLM. To compensate for the

106

approximately 1,000-acre differential,

Kaiser will also pay BLM a lump sum of

$20,100, which is well below the fair

market value. Kaiser anticipates huge

profits from a landfill operation on the

undervalued BLM land, well beyond the

$20,000 amount that would be paid for

approximately one third [sic] of the

property. Here again, Kaiser and a few

other parties will benefit at a significant

cost borne by the national treasury.

AR 06033. The court concludes that the above

language sufficiently presented to the IBLA the claim

that a landfill should have been considered as a

highest and best use of the exchanged lands, because

it gave the IBLA the opportunity to consider the

identical issue brought before this court. See Kern uv.

U.S. Bureau of Land Management. 38 F.Supp.2d

1174,1180 (D.Or. 1999), reud on other grounds, 284

F.3d 1062 (9th Cir. 2002).

Further, whether the issue was presented to the

IBLA by only one plaintiff is inconsequential. So long

as an issue is raised by some party at the

administrative level, it can be raised by another

party on judicial review. See Id. at 1180 (“[s]o long as

the agency properly had the opportunity to consider

the objection, it has no reason to challenge the

bringing of such objection before the a court by

another party.”); see also Buckeye Cable Vision v.

U.S., 438 F.2d 948, 951 (6th Cir. 1971) (so long as

agency “had an opportunity to consider the identical

issues in [the] case but which were raised by other

107

parties,... it was not necessary for [plaintiff] to raise

them again before the [agency].”)

Finally, the court notes that it is not necessary

for Plaintiffs to have presented to the IBLA every

issue before this court, so long as the issue was raised

at some point during the administrative process.

Defendants’ reliance on Marathon Oil Co. v. United

States, 807 F.2d 759 (9th Cir. 1986), is misplaced.

Contrary to Defendants’ assertion, Marathon Oil does

not support the proposition that all issues presented

to this court must have been first presented to the

IBLA. See Jd. at 767 (finding issue not properly

preserved because appellant failed to raise the issue

at any point during the administrative process:

“[Appellant] failed to raise the issue during the public

hearing or during the 30-day comment period or in its

appeal from the initial order” (emphases added)).

For the aforementioned reasons, the court

concludes that Plaintiffs properly exhausted their

administrative remedies with respect to their

FLPMA claim.

b. NEPA Claim

Defendants also contend that Plaintiffs have

failed te exhaust their administrative remedies with

respect to their NEPA claim.

As discussed above, Plaintiffs need only have

raised the NEPA issues it now raises before this

court at some point during the administrative

process. The record reflects that Plaintiffs first raised

all of the NEPA issues before this court during the

108

administrative process. See AR 50290

(eutrophication); AR 6063-6064 (noise); AR 6064-6065

(night lighting); AR 6066 (visual impacts); AR

6064,6074 (desert tortoises); AR 19076

(groundwater); AR 6067 (air quality); AR 6074-6075

(Bighorn sheep).

Therefore, the court concludes that Plaintiffs

properly exhausted their administrative remedies

with respect to their NEPA claim.

2. Appeal of BLM Decision

Defendants further contend that the decision of

the BLM, of which Plaintiffs seek judicial review, is

not a final agency decision under the federal

Administrative Procedures Act (“APA”), and

therefore not subject to review by this court.

Under the APA, the only agency decision that is

subject to judicial review is the final agency decision.

An ROD issued by an administrative agency

constitutes final agency action for purposes of the

APA. See, e.g., Sierra Club v. Slater. 120 F.3d 623,

631 (6th Cir. 1997), accord, Oregon Natural

Resources Council v. Harrell. 52 F.3d 1499,1504 (9th

Cir. 1995).

In Desert Citizens Against Pollution v. Bisson,

231 F.3d 1172 (9th Cir. 2000), plaintiffs challenged

under the FLPMA a BLM decision to enter into a

land exchange with a private party. In reviewing the

district court’s order, which dismissed the action on

the ground that plaintiffs lacked standing and, in the

alternative, denied the motion for preliminary

109

injunction, the Ninth Circuit stated that plaintiff was

appealing from the BLM’s decision, and not from the

decision of the IBLA:

[Plaintiffs] initially pursued administrative

remedies. Upon dismissal of the action by

BLM’s State Director, the environmental

groups jointly appealed to the [IBLA] and

petitioned for a stay pending appeal. IBLA

rejected the consolidated appeals and the

request for a stay. [Plaintiffs] brought the

instant case under the APA... [T]he

complaint... alleged that the land exchange

was arbitrary, capricious and an abuse of

BLM’s discretion and exceeded the statutory

limitations on BLM’s authority [emphasis

added] to exchange public lands under

FLPMA. [Plaintiffs] requested . . . that the

ROD approving the exchange be declared

unlawful and set aside [emphasis added] by

the district court. In _ addition, the

complaint requested preliminary injunctive

relief prohibiting BLM ... from taking any

further steps to complete the exchange

based on the ROD.

Id. at 1175. The opinion does not indicate that the

Ninth Circuit or the district court reviewed the

decision of the IBLA.

Moreover, appeal from a “final agency decision” is

a prerequisite for subject matter jurisdiction under

the APA. Lack of subject matter jurisdiction may be

raised by any party at any stage of federal litigation,

including on appeal. See Morongo Band of Mission

110

Indians v. California State Board of Equalization.

858 F.2d 1376, 1380 (9th Cir. 1988); see also

Attorneys Trust v. Videotape Computer Products, Inc.,

93 F.3d 593, 594-595 (9th Cir. 1996). Subject matter

jurisdiction may also be raised by both the district

courts and appellate courts sua sponte. See Morongo

Band of Mission Indians, 858 F.2d at 1380. (“The fact

that none of the parties contests the district court’s

jurisdiction does not... relieve us of our responsibility

to determine whether the exercise of jurisdiction was

proper.”); see also Jenkins v. McKeithen, 395 U.S.

411,421, 89 S.Ct. 1843,1849 (1969).

Because the court in Desert Citizens 1) stated

that plaintiff requested, infer alia, that the ROD

approving the exchange be declared unlawful and set

aside, and 2) did not raise the issue of subject matter

jurisdiction sua sponte, this court construes the Ninth

Circuit’s decision in Desert Citizens to review the

BLM’s ROD and not the decision of the IBLA

supports the proposition that a BLM ROD is a “final

agency action” under the APA, subject to review by

district courts.

Therefore, this court concludes that it has subject

matter jurisdiction over Plaintiffs’ FLPMA and

NEPA claims, and will address the merits of each

claim.

C. Summary Judgment

Under Rule 56(c) of the Federal Rules of Civil

Procedure, a district court may grant summary

judgment where “the pleadings, depositions, answers

to interrogatories, and admissions on file, together

111

with affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(c).

Plaintiffs and Defendants have filed cross-

motions for summary judgment. However, as more

than one court has noted, “[wlhen acting as a court of

appeal [under the APA], it is improper for a district

court to use methods and procedures designed for

trial.” Olenhouse v. Commodity Credit Corp., 42 F.3d

1560,1564 (10th Cir. 1994); see also Lodge Tower

Condominium v. Lodge Properties, Inc., 880 F.Supp.

1370,1374-75 (D.Colo. 1995). As the court in Lodge

Tower Condominium explained:

Because a district court’s function in

reviewing administrative action is different

from the function it usually performs as a

trier of fact, some of the procedures

designed to prepare a case for trial do not

work well when the court is reviewing

agency proceedings. Specifically, a motion

for summary judgment under [R]lule 56 of

the Federal Rules of Civil Procedure .. .

makes no procedural sense when a

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