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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2654%3A02

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2011
- **Citation:** 563 U.S. 913

## Text

Supreme Court, U.S.
FILED

2

—————

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

a

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,
v.
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,

v.

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

a

4

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

7
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

8

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.

9

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

10

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.

11

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.

12

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

13

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

14

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

16

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.

17

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

13

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

19

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

20

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

21

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.

22

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.

23

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.

24

(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

26

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

27

(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

99

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.

30

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.

3]

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.

JZ

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)

34

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

35

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

36

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

37

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

OO
Id

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

39

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

4]

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

43

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.

Ad
Il

PURPOSE AND NEED/PUBLIC
INTEREST/CONSIDERATION OF
ALTERNATIVES

A.
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

45

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

46

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

47

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:

4s

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

49

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.)

50

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
4

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

o2

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

o4

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:

56
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.

on
OO

In summary, my colleagues’ opinion’s claim that
BLM “foreordained” the approval of this exchange is
b
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

D9
-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

bo

3. Proposed offsite/and fill diversions
4. Landfill mining

. Alternative Townsite locations

on

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

60

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

6]

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,

62

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.

63

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

64

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

66

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

68

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,

69

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

70

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

71

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

72

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

73

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

74

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

76

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

77

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

78

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

79

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.

IV

HIGHEST AND BEST USE

80

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.

A.
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.

81

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

82

(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.

83

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

84

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 r

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2654%3A02. Public record. Not legal advice.